Beyond Human Rights

There is, perhaps, no other

area of law where Cicero’s saying (well-known to all lovers of
dictionaries  of  quotations)  is  more  applicable  than  human
rights.  In  the  name  of  humanity,  the  Empire  of  Good  will
bomb  Belgrade,  Baghdad  or  Tripoli,  foment  colour
revolutions  in  former  Soviet  states,  set  the  Maghreb  and  the
Near  East  ablaze,  and  seek  to  universally  impose  its
fundamentalist  conception  of  democracy.  Squads  of
businessmen  dispatched  by  corporations  will  follow  the
ideological  bulldozers  driven  by  the  evangelists.  How  many
times  have  popular  revolutions  been  hijacked  by  social
benefactors  chiefly  interested  in  serving  the  interests  of  the
people behind them?

Already in the late 1970s — with the onset of the second

wave  of  globalisation  —  the  philosopher  Marcel  Gauchet
observed  how  the  defence  of  human  rights  had  been  turned
into  a  substitution  policy.

This metamorphosis has

continued:  from  politics,  one  has  moved  on  to  religion,  so
much  so  that  today  —  as  Alain  de  Benoist  observes  in  the
present  volume  —  ‘it  is  as  unseemly,  blasphemous  and
shocking  to  criticise  the  ideology  of  human  rights  as  it  once
was  to  doubt  the  existence  of  God’.  In  this  context,  works
critical of human rights — meaning works written in a critical
spirit — can only be beneficial. With the eyes of a lynx, at the
beginning  of  this  transformation,  Michel  Villey  had  set  out
precisely  to  provide  such  a  critique.

He caused quite a bit

of  consternation  and  his  work  is  now  read  neither  in  law
faculties  nor  anywhere  else.  Is  Alain  de  Benoist’s  work
destined  to  meet  the  same  fate?  We  bet  it  won’t.  Still,  the
sanctimonious  are  gathered  in  their  palaces:  the  Venetian
palaces  housing  the  mighty  Venice  Commission.  These
constitutional  engineers  are  developing  principles  of  political
justice  to  be  adopted  by  all  states  seeking  admission  into  one
of  the  many  European  organisations,  starting  from  the
European  Council  and  European  Union.  In  the  Palace  of
Nations in Geneva, away from the cries of the people, experts
are setting down universally applicable human rights laws and
the ways in which these are to be applied. In the Palace of the
Rights  of  Man,

in Strasbourg, great inscrutable judges,

enveloped  in  long  silk  robes,  unflinchingly  issue  regulatory
judgements  reversing  previous  laws,  overruling  parliaments
and  bypassing  the  constitutions  of  sovereign  states.  It  is
difficult  to  make  this  criticism  heard  because  the  Church  of
Human  Rights  is  so  powerful  that  it  imposes  as  self-evident
doctrines  which  rest  on  nothing  but  sheer  assumptions,  and
which  often  go  against  the  most  ancient  laws  in  peoples’
traditions.

It is upon these assumptions that Alain de Benoist focuses,

investigating the origins, basis, universality and influence of
human rights. In doing so, he undermines the very
foundations of human rights and their underlying claims.

1. Human rights are often presented as being timeless rights.
Take the Preamble to the Declaration of the Rights of Man
and of the Citizen of 1789:

The  representatives  of the  French  people,  constituted  in the
National  Assembly,  considering  that  ignorance,  forgetfulness  or
contempt  of the  rights  of  man  are the  only  causes  of  public
misfortunes  and the  corruption  of  governments,  have  resolved  to
set  forth,  in  a  solemn  declaration,  natural  rights,  inalienable  and
sacred to man.

Forgetfulness  or  contempt,  according  to  this  declaratory
rhetoric, justifies the need to reinstate rights which nonetheless
already  exist.  It  is  for  this  reason  that  the  first  French
Revolutionaries  were  so  keen  to  draw  a  distinction  between
the Declaration of 1789 on the one hand and the Constitution
of 1791 on the other. The former reinstates what is already in
existence,  whereas  the  latter  establishes  something  which
previously  did  not  exist;  the  former  invokes  an  alleged
tradition,  the  latter  forges  institutions  for  the  new  man.  But
clearly  this  is  a  largely  rhetorical  distinction.  The  antiquity  of
the  rights  invoked  serves  to  justify  the  promotion  of  the  new
man,  Homo  oeconomicus,

whose actions are entirely

calculated to match the algorithm of his own interests and
whose behaviour can be standardised.

Antiquity, however, ignored the idea of fundamental rights.

Neither  the  Greeks  nor  the  Romans  believed  there  could  be
such  a  thing  as  what  we  call  human  rights,  which  are
subjective rights attached to all human individuals as subjects.
For  human  rights  to  become  possible,  the  notion  of  the
individual  had  to  be  invented,  and  Norbert  Elias  has  shown
that  there  was  no  equivalent  to  it  in  Antiquity.

Alain de

Benoist stresses the important role which the Christian religion

played in the birth of the idea of the individual. This is not to
say  that  individuals  did  not  exist  before  Christianity  (to  think
so  would  be  absurd);  simply,  individuals  were  not
acknowledged  as  such.  For  the  category  of  the  individual  to
make its appearance — the prerequisite for the birth of human
rights  —  it  was  necessary  to  attribute  a  unique  value  to  each
human being, a soul which would connect it to God. Starting
from the individual, it then became possible to think in terms
of  subjects;  starting  from  subjects,  in  terms  of  subjective
rights;  and  starting  from  subjective  rights,  in  terms  of  human
rights.  Naturally,  this  was  no  linear  progression;  yet  it
indicates an axis which ultimately runs from St. Augustine to
Locke  and  Kant.  From  the  Sixteenth  century  onwards,  it  has
contributed to the development of modern natural law, which
has found its chief representatives in Grotius,

Pufendorf,

Locke

and Wolff

and has exercised a considerable

influence upon the thought of both the Founding Fathers of
the United States and the French Revolutionaries.

The anthropological revolution which made it possible to

think of man as an individual immediately went hand-in-hand
with  a  juridical  revolution  which  imposed  the  idea  that
individuals  are  equal  before  the  law,  i.e.,  that  they  possess
inalienable  subjective  rights.  Differences  among  men  thus
came  to  be  regarded  as  something  merely  contingent,
secondary  and  social,  and  hence  commonly  perceived  as
unjust.  So  much  so  that,  as  René  Girard  has  illustrated,  it  is
equality  —  through  the  mimetic  rivalry  it  engenders  —  and
not  mutual  difference  which  is  the  major  cause  of  conflict

among men.

Alain de Benoist has written that a triple

revolution  has  shaped  modernity:  ‘On  the  one  hand,  the
notion  of  will  is  substituted  for  the  notion  of  order.  On  the
other hand, the individual has moved to the centre and the law
has  become  his  attribute.  Finally,  the  law  is  identified  with
“justice”,  the  latter  having  henceforth  an  essentially  moral
complexion.’  This  triple  revolution  clearly  shows  that  human
rights are far from eternal and that their alleged universality is
merely  the  expression  of  an  ideology,  which  is  to  say  of  a
system  for  representing  the  world  and  man’s  place  in  the
world  which  has  being  developing  and  incessantly  changing
since  late Antiquity.  In  its  modern  form,  the  anthropology  of
subjects  is  a  recent  invention.

It is based on an abstract

conception of the individual, reduced to certain constitutive
elements whose combinations standardise our actions.

2. Human rights, however, are presented not in terms of their
historicity  —  for this  would  weaken their  authority  by
relativising them  —  but through  a  philosophical  tale  of their
foundations. It is always very important to clearly distinguish
the historical question of origins from the philosophical one of
foundations.  Alain  de  Benoist  must  be  credited  for  having
drawn a perfect distinction between the two issues.

In its basic version, the question of the foundations of

human rights may be formulated starting from social contract
theories. Indeed, explanations not of the origins of society but
of  its  foundations  were  first  developed  within  the  school  of
modern  natural  law,  a  current  of  thought  which  began  with
Grotius’  publication  of  the  treatise  The  Rights  of  War  and

Peace

[15]

in 1625 and which continued into the Eighteenth

century.

The

various

social

contract

theories

vary

significantly,  to  the  point  they  are  mutually  irreducible.  Still,
they  follow  a  line  of  thought  that  may  be  summed  up  as
follows:  free  individuals  exist  in  the  state  of  nature.  In  order
for them to defend their own freedom and property, they soon
realised  they  needed  a  common  power  which  could  secure
their  fundamental  rights.  The  state,  which  is  to  say  public
power, results from an agreement among free individuals who
have  regrouped  to  form  an  association.  The  political
constitution  which  serves  as  a  law  for  them  is  the  contract
which  brings  them  together.  All  the  elements  behind  the
theory  of  human  rights  are  already  present  in  this
mythological account: the individual in the state of nature is a
Homo  oeconomicus,  a  free  individual  and  property  owner
concerned with defending his own interests. Through rational
planning,  he  reaches  the  conclusion  that  the  establishment  of
the  state  is  necessary  if  he  is  to  defend  his  own  interests. As
individuals are essentially rational, a collective choice can only
lead  to  a  contract.  Case  made.  The  same  reasoning  may  be
applied at the level of states to justify the establishment of an
international society.

This line of reasoning, sprung from Seventeenth-century

philosophical treatises, has not yet grown outdated. It is still to
be found at the very heart of the most sophisticated
contemporary theories. John Rawls’ A Theory of Justice,

which is often regarded as the greatest work of political
philosophy of the Twentieth century, is nothing but an

elaborate  reformulation  of  social  contract  theories.  Some  of
the  major  interpretations  of  globalisation,  such  as  Francis
Fukuyama’s  theory  about  the  end  of  history

or James

Rosenau’s idea of global governance,

are based on the

same assumptions. Social contract theory is not an old theory
belonging  to  the  history  of  political  philosophy,  but  rather
something  which  is  constantly  being  updated  and  expanded,
and which serves as a foundation for theories of international
law.  The  recent  theory  about  ‘the  responsibility  to  protect’
which  has  been  applied  by  the  United  Nations  Security
Council  in  the  Ivory  Coast  and  in  Libya  ultimately  rests  on
Locke’s  idea  that  rulers  only  derive  their  legitimacy  from  the
protection  they  afford  the  freedom  and  property  of
individuals, thus losing all legitimacy the moment they oppose
any  insurrection  in  the  name  of  freedom.  When  the  social
contract  is  severed,  the  NATO  air  forces  will  intervene  to
restore it.

3. The above observations lead us to another  question,  which
is  also  raised  by  Alain  de  Benoist  in  his  work,  namely the
issue  of the  universality  of  human  rights.  Human  rights  are
spreading  globally.  Does this  mean they  are  universal?  A
distinction  must  clearly  be  drawn  between the  two  questions.
The first is a practical matter, the latter a juridical one. Still, the
two  questions  are  interrelated. The  idea that  human  rights  are
universal  will  lead  people  to  search  for  ways  of  extending
their

applicability. The

just

war

is the unavoidable

consequence of affirming the universality of human rights.

The alleged universality of human rights is bound to run up

against the  diversity  of  cultures  and  values.  One  civilisation
will expose deformed newborns, while another  will  euthanise
the  elderly. The  Caribs  would  eat the  flesh  of their  slain
enemies  in  order  to  assimilate their  virtues,  while the  Incas
used to sacrifice a Corn Queen in order to sprinkle their fields
with  fresh  blood.  Many  populations  of  sub-Saharan  Africa
practice female circumcision; Jews and Muslims practice male
circumcision. Dying for one’s country after killing the highest
possible  number  of  enemies  was  still  held  to  be  an  honour
only  fifty  years  ago,  while  having  an  abortion  was  seen  as  a
crime  against the nation. Slavery as practiced in ancient Rome
and Athens has become the very symbol of degeneration, and
yet  purchasing  a  child  conceived  in the  womb  of  a  woman
who is renting her uterus is held to be a right in some modern
Western  countries. A  thousand other  examples  could  be  cited
to  illustrate the  following  point:  ‘Three  degrees  of  latitude
overthrow  jurisprudence.  A  meridian  determines  the  truth.
Law  has  its  periods;  right  has  its  epochs;  Saturn’s  entry  into
the  house  of the  Lion  marks the origin of a given crime. It is
an odd kind of justice to have a river for its boundary. Tru th
lies  on this  side  of the  Pyrenees,  error  on the  other.’

Under these conditions, what credibility could the idea of
universal human rights have?

A Universal Declaration of Human Rights was adopted

through  a  resolution  of the  General  Assembly  of the  United
Nations  on  10  December  1948  in the  Palais  de  Chaillot  (yet
another  palace!),  but  its  applicability  remained  limited,  as  is
shown

by the multiplication of later declarations: the

American  Declaration  of the  Rights  and  Duties  of  Man,
adopted in Bogotá in 1948, the  Convention  for the  Protection
of  Human  Rights  and  Fundamental  Freedoms  (known  as the
European Convention of Human Rights) signed in Strasbourg
in  1950, the African  Charter  on  Human  and  Peoples’  Rights
adopted in Nairobi in 1981, the Universal Islamic Declaration
of  Human  Rights  proclaimed  in  Paris  in  1981, the  Arab
Charter on Human Rights signed in 1994 and finally adopted
in  Tunis  in  2004, the  European  Charter  on  Fundamental
Rights  adopted  in  Nice  in  2000...  Why  multiply the
declarations if they are all alike? The truth  is that, in fact, they
are  not  alike  (for  some  stress  rights  and  others  add  duties;
some  contain  only  fundamental  rights,  while  others  also
include  social  or  economic  rights).  Nor  do these  declarations
all stem from the same principles.

Take the following example: in its Preamble, the Universal

Islamic Declaration of Human Rights contains a resounding
statement:

Therefore we, as Muslims who believe

a) in God, the Beneficent and Merciful, the Creator, the

Sustainer, the Sovereign, the sole Guide of mankind and the Source
of all Law;

b) in the Vicegerency (Khilafah) of man who has been created to

fulfil the Will of God on earth;

c) in the wisdom of Divine guidance brought by the Prophets,

whose mission found its culmination in the final Divine message
that was conveyed by the Prophet Muhammad (Peace be upon him)
to all mankind.

It  does  not  take  a  great  scholar  to  grasp tha t the  universality
referred to here has little to do with the universality of human
rights  as  understood  by the  European  Convention  of  Human
Rights  or the  European  Charter  on  Fundamental  Rights,  both
of  which  prudently  avoid  all  references  to  God  and  assume
man is of one kind.

These few indications are enough to reveal how in the West,

in  Europe,  when  talk  is  made  of the  universality  of  human
rights, it is real universality — so to speak  —  which  is  being
referred  to,  namely that  of  secularised,  individualist  societies
following a market economy and mass consumption. It is this
universality alone which is being offered as a model to the rest
of  humanity.  Besides,  it  would  be  easy  to  show  how  all the
exotic declarations, charters and conventions on human rights
are more the product of an incomplete acculturation process, a
form  of  collateral  damage  caused  by the  colonisation  of
consciences, than  of  any  spontaneous  drive  towards
fundamental rights on the part of indigenous elites!

The Western notion of individual rights is far from common

to  everyone,  including those  who  adopt  declarations  or
charters  regarding  fundamental  rights.  As  Alain  de  Benoist
well  illustrates, the  European  conception  of the  individual  is
simply incomprehensible to most non-Western cultures, which
rest  on  completely  different  holistic  or  communitarian
foundations.

4. Much evidence suggests that the spread of human rights

is taking an increasingly authoritarian turn. Alain de Benoist

begins  by  focusing  on the  problem  of the  emergence  of the
idea of dignity as a category central to human rights. Ignored
i n the  first  declarations  from the  late  Eighteenth  century, the
dignity  of the  human  person  entered the  world  of  human
rights after 1945, when it began to be used in the sense of that
which distinguishes man — something  above the  sovereignty
of  both  individuals  and  peoples. The  introduction  of the  idea
of dignity in relation to human rights has led to a substantialist
turn.  Human  rights  are  not  merely  subjective  but  also
substantial,  meaning they  are  rights  which  neither  individuals
nor  peoples  can  forgo,  as they  represent the  very  essence  of
man.

A fundamentalist conception of human rights has thus

emerged which justifies any defence of these rights against the
very will of individuals or peoples — defence by means of
force.

Through various bodies, the European Council is playing a

leading role in spreading this conception. Let us recall here, by
way of example, the action of the Venice Commission and of
the European Court of Human Rights.

The

Venice

Commission

(officially, the

European

Commission for Democracy through Law) is an advisory
body of the Council of Europe specialising in constitutional
matters.

It was very active in the 1990s, when it lent

advice  to the  rulers  of  central  and  eastern  European  states  by
providing them  with  good  constitutional  principles. The
Commission  has  played  an  important  role  in  promoting  what

is sometimes still referred to as ‘democratic conditionality’. Its
original  aim  was  to  help the  former  Soviet  states  to  change
their constitutions and fundamental laws so that they would be
in  conformity  with  European  norms  by  respecting the
standards  of the  European  Council  —  namely,  democracy,
human  rights  and the  rule  of  law.  Later,  the  reputation
acquired  by the  Venice  Commission  enabled  it  to  extend  its
influence  beyond  Europe.  It  is  now  particularly  active  in
Africa and the Middle East.

Parallel to this, we are witnessing a juridically remarkable

development  of the European Court of Human  Rights,  which
is going further and further in its definition of what constitutes
real  democracy. The  Court  is  setting the  main  standards  for
democracy  and,  in  doing  so,  increasingly  affecting the
constitutional law of European states, to the point of breaching
their independence.

Democracy is literally in the grip of human rights. This form

of democracy is called constitutional. Judge Aharon Barak, the
former President of the Israeli Supreme Court, summed it up
in a rather striking way:

Everyone  agrees that  a  democracy  requires the  rule  of the  people,
which  is  usually  effectuated through  electing  representatives  in  a
legislative  body. Therefore,  frequent  elections  are  necessary  to
k e e p these  representatives  accountable  to their  constituents…
Democracy  is  not  satisfied  merely  by  abiding  by  proper  elections
and  legislative  supremacy.  Democracy  has  its  own  internal
morality  based  on the  dignity  and  equality  of  all  human  beings.
Thus, in addition to formal requirements (elections and the rule of

the  majority), there  are  also  substantive  requirements. These  are
reflected  in the  supremacy  of  such  underlying  democratic  values
and  principles  as  separation  of  powers, the  rule  of  law,  and
independence of the judiciary. They are based on such fundamental
values as tolerance, good faith, justice, reasonableness, and public
order. Above all, democracy cannot exist wi thout the protection of
human  rights  —  rights  so  essential tha t they  must  be  insulated
from the power of the majority… Democracy is not just the law of
rules and legislative supremacy; it is a multidimensional concept.
It  requires  recognition  of  both  the  power  of the  majority  and the
limitations on that power. It is based on legislative supremacy and
on the supremacy of values, principles, and human rights.

This extract from a work by Judge Barak reflects a very
common conception of democracy, which is found among
several authors: the Frenchman Dominique Rousseau,

the

German Peter Häberle,

and the American Stephen

Breyer

are only some of the zealous defenders of this

substantialist conception of democracy, which treats the
people chiefly as an ideal and an abstract principle rather than
a tangible community brought together by shared values,
views and practices.

Alain de Benoist’s work offers a particularly enlightening

critique  of  this  concept  of  substantialist  or  fundamentalist
democracy.  It  will  serve  as  a  starting  point  for  thinking
beyond  human  rights  through  a  return  to  political  categories.
Human rights are not a policy and a policy of human rights is
the  very  negation  of  politics. Alain  de  Benoist  is  fully  in  line
with  Carl  Schmitt’s

and Julien Freund’s

theories

about the essence of politics. Indeed, he may be regarded as

their real heir.

Eric Maulin,

Professor of Public Law at Strasbourg University

Director of the Institut des Hautes Études Européennes

June 2011

(Translated into English by Sergio Knipe)

Latin: ‘the extreme law is the greatest injustice’. From Cicero, ‘On

Duties’, book one, chapter 33.-Ed.

Marcel Gauchet, ‘Les droits de l’homme ne sont pas une politique’,

in Le Débat, no. 3, July-August 1980, pp. 2-21; reprinted in La
démocratie contre elle-me

̂me (Paris: Gallimard, 2002).

Michel Villey, Le Droit et les Droits de l’homme (Paris: Presses

universitaires de France [PUF], 1983).

Otherwise known as the European Court of Human Rights.-Ed.

The Declaration of the Rights of Man and of the Citizen was adopted

by the French Constituent Assembly during the French Revolution, in
August 1789.-Ed.

Latin: ‘economic man’.-Ed.

Norbert Elias, The Society of Individuals (Oxford: Basil Blackwell,

1991).

Hugo Grotius (1583-1645) was a Dutch jurist who is considered one

of the founders of international law based upon the principles of
natural law, in particular as it pertains to the conditions for the
justifications of war.-Ed.

Samuel von Pufendorf (1632-1694) was a German political

philosopher and statesman. He asserted that the authority of the state
depends for its power upon the combined wills of the individuals that
comprise it.-Ed.

John Locke (1632-1704) was an English philosopher of the

Enlightenment who is regarded as the most important theorist of
liberalism, as his works were extremely important to the
development of modern democracy.-Ed.

Christian Wolff (1679-1754) was a German philosopher who

viewed human society in the same way as the division between body
and soul, in which the soul is the leadership of the state and the body
represents its subjects, which comprise the majority of the populace.-
Ed.

Georg Jellinek, The Declaration of the Rights of Man and of

Citizens: A Contribution to Modern Constitutional History (Wesport:
Hyperion Press, 1979).

René Girard, Violence and the Sacred (Baltimore: The Johns

Hopkins University Press, 1977).

Regarding this matter, we shall refer to the overview provided by J.

B. Schneewind, The Invention of Autonomy: A History of Modern
Moral Philosophy (Cambridge: Cambridge University Press, 1998).

Grotius on the Rights of War and Peace: An Abridged Translation

(Clark: The Lawbook Exchange, 2009).

John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press,

1971).

Francis Fukuyama, The End of History and the Last Man (New

York: Maxwell Macmillan, 1992).

James Rosenau, Turbulence in World Politics: A Theory of Change

and Continuity (Princeton: Princeton University Press, 1990).

Blaise Pascal, Pensées and Other Writings (Oxford: Oxford

World’s Classics, 1995), § 294, p. 23. Montaigne had already written:
‘What truth is it that is bounded by these mountains and that is
falsehood in the world beyond them?’ in Apology for Raymond
Sebond (Indianapolis: Hackett, 2003), p. 140.

Full text available at the Al-Hewar Center Web site

(www.alhewar.com/ISLAMDECL.html).-Ed.

The European Commission for Democracy through Law, better

known today as the Venice Commission, was founded in Strasbourg
some twenty years ago — on 10 May 1990 — by the 18 member
states of the European Council: Austria, Belgium, Cyprus, Denmark,
Finland, France, Greece, Ireland, Italy, Luxembourg, Malta, Norway,
Portugal, San Marino, Spain, Sweden, Switzerland and Turkey.

This is a phenomenon which has been studied in detail, yet without

any critical spirit, by Florence Jacquemot in Le standard européen de
société démocratique (Montpellier: Université Montpellier I, 2006),
and more recently by Yannick Lécuyer, L’européanisation des
standards démocratique (Rennes: Presses de l’Université de Rennes,
2011).

Aharon Barak, The Judge in a Democracy (Princeton: Princeton

University Press, 2006), pp. 27-33.

Dominique Rousseau, Sur le conseil constitutionnel: La doctrine

Badinter et la démocratie (Paris: Descartes & Cie, 1997); Dominique
Rousseau (ed.), La démocratie continue (Paris: LGDJ, 1995).

Peter Häberle, L’État constitutionnel (Paris: Economica, 2004).

Stephen Breyer, Active Liberty: Interpreting Our Democratic

Constitution(New York: Alfred A. Knopf, 2006).

Carl Schmitt (1888-1985) was an important German jurist who

wrote about political science, geopolitics and constitutional law. He
was part of the Conservative Revolutionary movement of the Weimar
era. He also briefly supported the National Socialists at the beginning
of their regime, although they later turned against him. He remains
highly influential in the fields of law and philosophy.-Ed.

Julien Freund (1921-1993) was a student of Raymond Aron and

Carl Schmitt. During the Second World War, he was a member of the
French Resistance movement. After the war he became a professor of
sociology at the University of Strasbourg. In 1980, in protest against
the French educational system and its methods of teaching political
science, he decided to retire. He was also a contributor to New Right
publications in both Germany and France.-Ed.

INTRODUCTION

One  sometimes  wonders  what  Europe  has  brought  to the
world,  what  particularly  characterises  it. The  best  reply  is
perhaps this: the  notion  of  objectivity.  Everything  else  flows
from this: the idea of the individual and of the freedom of the
individual, the  common  good  insofar  as  it  is  distinguished
from particular interests, justice as the search for equity (that is
to  say, the  opposite  of  vengeance), the  ethics  of  science  and
the respect for empirical data, philosophical thought insofar as
it  is  emancipated  from  belief  and  conserves the  power  of the
thinker to think  of the world and to question truth by himself,
the  spirit  of  restraint  and the  possibility  of  self-criticism, the
capacity for dialogue, and even the notion of truth.

Universalism is a corruption of objectivity. Whereas

objectivity  is  achieved  from  particular  things,  universalism
claims  to  define  particularity  from  an  abstract  notion  posed
arbitrarily.  Instead  of  deducing  conscience  from  being,  it
proceeds  in  an  opposite  direction.  Universalism  does  not
consist  in  treating  things  objectively  but  from  an  overarching
abstraction from which a knowledge of the nature of things is
supposed  to  follow.  It  represents  the  symmetrical  opposite  of
the error of the metaphysics of subjectivity, which reduces the
good to that which is good for me or good for us, the true to
the judgment of one’s own conscience or to the personal. The
European  tradition  has  always  affirmed  man’s  necessity  to
struggle  against  his  immediate  subjectivity.  The  entire  history
of  modernity,  says  Heidegger,  is  a  history  of  the  unravelling

of the metaphysics of subjectivity.

Subjectivity leads necessarily to relativism (everything is

valid),  reaching  in  this  way  the  egalitarian  conclusion  of
universalism  (all  are  important).  Relativism  cannot  be
surmounted  except  by  the  arbitration  of  one’s  self  (or  of  our
selves):  my  point  of  view  should  prevail  for  the  sole  reason
that it is mine (or that it is ours). The notions of justice and of
the common good are destroyed in one blow.

The ideology of human rights combines these two errors. It

is universalist insofar as it wishes to impose itself everywhere
without consideration for relationships, traditions and
contexts. It is subjectivist insofar as it defines rights as the
subjective attributes of a single individual.

‘The enthronement of human rights’, writes Marcel

Gauchet, ‘is surely the major ideological and political fact of
the last twenty years’.

Human rights, he adds, have become

‘the  ideological  centre  of  gravity’  of  everything  that  we
participate in at present. They are on the verge of replacing, in
a  hegemonic  manner,  all  sorts  of  political  and  social
discourses  which  formerly  were  articulated  from  the  point  of
view  of  notions  that  are  today  worn  out  or  discredited
(tradition,  nation,  progress,  revolution),  as  well  as  of
becoming  the  sole  compass  of  a  disoriented  epoch,  and  of
supplying a minimal morality to a world in disarray. They are
the  ‘moral  horizon  of  our  time’,  says  Robert  Badinter.

They should become the ‘foundation of all societies’, adds
Kofi Annan.

They contain ‘in essence the concept of a true

world government’, declares Jean Daniel.

They are even more than that. Based on propositions

declared  to  be  ‘evident’  (‘we  hold  these  truths  to  be  self-
evident’ can already be found in the American Declaration of
Independence of July 1776), they present themselves as a new
Ten  Commandments.  As  a  new  foundation  of  human  order,
they seem to have a sacred character. Human rights have thus
been  able  to  be  defined  as  the  ‘creed  of  humanity’  (Nadine
Gordimer),

and as a ‘worldwide secular religion’ (Elie

Wiesel).

They are, writes Régis Debray, ‘the last, to date, of

our civil religions, the soul of a soulless world’.

One proof of this is its dogmatic character: it cannot be

debated.  That  is  why  it  seems  today  as  unsuitable,  as
blasphemous, as scandalous to criticise the ideology of human
rights  as  it  was  earlier  to  doubt  the  existence  of  God.  Like
every  religion,  the  discussion  of  human  rights  seeks  to  pass
off its dogmas as so absolute that one could not discuss them
without  being  extremely  stupid,  dishonest  or  wicked.  By
presenting  human  rights  as  ‘human’  rights,  as  ‘universal’
rights,  one  necessarily  withdraws  them  from  criticism  —  that
is  to  say  from  the  right  to  question  them  —  and,  at  the  same
time, one implicitly places their opponents beyond the pale of
humanity,  since  one  cannot  fight  someone  who  speaks  in  the
name  of  humanity  while  remaining  human  oneself.  Finally,
just  as,  the  believers  once  thought  they  had  the  duty  to
convert, by all means, ‘infidels’ and miscreants, the adherents
of  the  credo  of  human  rights  consider  themselves  as
legitimately  invested  with  the  mission  of  imposing  these

principles on the whole world. Theoretically founded on a
principle of tolerance, the ideology of human rights thus
reveals itself to be the bearer of the most extreme intolerance,
of the most absolute rejection. The Declarations of Rights are
not so much declarations of love as declarations of war.

But today the discussion of human rights does not just have

as its goal the supply of a substitute ideology after the collapse
of  the  ‘grand  narratives’.  By  seeking  to  impose  a  particular
moral norm on all peoples, it aims at giving  the  West  a  good
conscience once again by allowing it to install itself once more
as  a  model  and  to  denounce  as  ‘barbarian’  those  who  refuse
this  model.  In  history  ‘rights’  have  only  too  often  been  that
which  the  masters  of  the  dominant  ideology  had  decided  to
define in this way. Associated with the expansion of markets,
the  discussion  of  human  rights  constitutes  the  ideological
armour  of  globalisation.  It  is  above  all  an  instrument  of
domination, and should be regarded as such.

Men should be able to fight everywhere against tyranny and

oppression.  To  contest  the  ideology  of  human  rights  is  thus
evidently not to plead for despotism, it is rather to contest that
this  ideology  is  the  best  means  of  remedying  it.  It  is  to
question oneself concerning the validity of the foundations of
this  theory,  on  the  nomological  status  of  these  rights,  and  on
the  possibilities  of  manipulation  to  which  they  can  be
subjected. It is thus to propose another solution.

Freedom is a cardinal virtue. It is the very essence of truth.

That is why it should be removed from the rut of universalism

and  subjectivity.  That  human  rights  are  proclaimed  forcefully
in  an  increasingly  dehumanised  society,  where  men
themselves  tend  to  become  objects,  and  where  the
commercialisation  of  social  relationships  creates  everywhere
new  phenomena  of  alienation,  is  probably  not  an  accident.
There  are  many  ways  of  demonstrating  respect  and  solidarity
to men. The question of freedoms cannot be resolved in terms
of  law  or  of  morality.  It  is  above  all  a  political  question.  It
should be resolved politically.

La démocratie contre elle-me

̂me (Paris: Gallimard, 2002), p. 326.

Robert Badinter (b. 1928) is a lawyer and a long-time politician of

the Socialist Party in France who is best-known for his opposition to
the  death  penalty,  which  was  repealed  in  1981.  De  Benoist  is
referring  to  Badinter’s  speech  at  the  50th  anniversary  ceremony  to
mark  the  signing  of  the  Universal  Declaration  of  Human  Rights,
which  was  adopted  by  the  United  Nations  in  1948.  Badinter  stated,
‘Here is a text which, even more than when it was conceived, marks
the moral horizon of our times.’-Ed.

Kofi Annan (b. 1938) was Secretary General of the United Nations

from 1997 until 2006.-Ed.

Jean Daniel (b. 1920) is a French-Jewish journalist and writer known

for his liberal humanist positions.-Ed.

Nadine Gordimer (b. 1923) is a Jewish South African writer who

was known for her involvement in the anti-apartheid movement. She
won  the  Nobel  Prize  for  Literature  in  1991.  In  The  Universal
Declaration  of  Human  Rights:  Fifty  Years  and  Beyond   (Amityville:
Baywood,  1999),  p.  viii,  she  wrote  that  it  ‘is,  and  shall  remain,  the
essential document, the touchstone, the creed of humanity that surely

sums up all other creeds directing human behavior, if we are to
occupy this world together now and in the Twenty-first century.’-Ed.

Elie Wiesel (b. 1928) is a Romanian-Jewish Holocaust survivor who

is well-known for his books describing the event. In The Universal
Declaration of Human Rights, p. 3, he wrote, ‘The defense of human
rights has, in the last fifty years, become a kind of worldwide secular
religion.’-Ed.

Que vive la République (Paris: Odile Jacob, 1989), p. 173. (Jules

Régis Debray [b. 1940] is a prominent French Marxist intellectual.
He is famous for having been a part of Che Guevara’s ill-fated
guerrilla insurgency in Bolivia in 1967.-Ed.)

1. ARE HUMAN RIGHTS A PART OF THE

LAW?

The  ideology  of  rights  classically  defines  ‘human  rights’  as
the  innate  rights,  inherent  in  human  nature, that  are  borne  by
every  individual  since the  time  of the  ‘state  of  nature’, that  is
to  say,  before the  development  of  all  social  relations.  Being
subjective  attributes  of  every  man  insofar  as  he  is  a  man,
relating to an isolated individual, who is pre-political and pre-
social, these  rights  are therefore  necessarily  individual  in
nature: they  are those  which the  individual  can  implement
according  to  his  will  alone; they  constitute the  privileges
which the  agent that  possesses them  can  enjoy. They  are  a
prerogative  of  all  human  beings,  supposed  to  be  independent
of  space  and  time,  valid  at  all  times  and  in  all  places
independently  of  personal  conditions,  political  situations  and
socio-historical  attributes, they  are  besides  universal  and
inalienable  by  definition.  No  state  can  create them,  grant  or
abrogate them,  since they pre-date, and are superior  to,  every
social  and  political  form. The  public  powers  can  only
recognise them by making sure that they guarantee and respect
them. The  general  idea  which  is  deduced  from this  definition
is that man is not reducible to his social being, and that his true
self is elsewhere.

Human rights are ahistorical, but they nevertheless have a

history. Besides, the expression jura hominum

[1]

besides is

not older than 1537.

The first question that one should

pose consists, therefore, in knowing according to what

procedure  human  rights  were  able  to  be  recognised  and  then
‘declared’,  and  to  what  extent  their  legal  formulation
represents  —  or  does  not  —  a  solution  that  represents  a
continuity in relation to the traditional forms of the law.

Originally, law was not at all defined as a collection of rules

and norms of conduct (which derive from morality), but as a
discipline  aiming  at  determining  the  best  means  of  instituting
equity within a relationship. For the Greeks, justice in the legal
sense  of  the  term  represented  good  proportion,  the  equitable
proportion  between  distributed  possessions  and  duties.  The
jus

[3]

of Classical Roman law aimed equally at determining

the ‘good distribution’ that should exist between men, the just
sh ar e that should be attributed to everyone: suum cuique
tribuere.

Cicero

thus says, in relation to civil law, that

‘its end is to maintain among citizens, in the distribution of
goods and in legal cases, a just proportion resting on the laws
and customs’.

The jurist is one who determines this just

distribution.  Being  constituted  of  the  equity  and  rectitude  of
relationships  between  persons,  justice  aims  from  that  at  the
harmony  of  the  group.  The  privileged  domain  of  the  law  is
therefore that of distributive justice, that is to say, of a justice
placing the citizens in order among themselves and in relation
to the common good. Human nature serves as a reference but
is not apprehended according to conscience, independently of
all  social  relations.  It  is  in  itself  only  an  element  of  a
hierarchical Nature which assigns to it its place and function.

In this conception of Classical natural law, there is no place

either for universalism, or for subjectivism, or for

contractualism.  A  subjective  law,  a  law  which  would  be  an
attribute  of  the  person  outside  all  social  life,  is  unthinkable.
‘Rights’  are  only  distributions  which  should  go  to  such  or
such, the result of a distribution ordered by the judge. The law
thus never concerns itself with an isolated being, an individual
considered as such. It does not concern itself, either, with man
taken  in  his  generality:  generic  man  remains  an  empty
category.  ‘The  Greeks’,  observes  Jean-Pierre  Vernant,  ‘are
totally deprived of this idea of a singular individual, the bearer
of universal and inalienable rights, which seem to be taken for
granted  by  us’

— something that did not prevent them

from inventing democracy and to honour the notion of
freedom more than others.

The first rupture appeared with Christianity. The Christian

religion proclaims, in effect, the unique value of every human
being  by  positing  him  as  a  value  in  himself.  Insofar  as  he
possesses  a  soul  which  puts  him  in  a  direct  relationship  with
God,  man  becomes  the  bearer  of  an  absolute  value,  that  is  to
say,  of  a  value  which  cannot  be  confused  either  with  his
personal  qualities  or  with  his  belonging  to  a  particular
collective  group.  Concomitantly,  Christianity  gives  a  purely
individual definition of freedom, which it makes the faculty of
choosing,  for  a  person  endowed  with  reason,  in  accordance
with  morality,  and  between  the  means  that  lead  to  an  end
(Radix  libertatis  sicut  subjectum  est  voluntas,  sed  sicut  causa
est  ratio,

as Thomas Aquinas

would say). This accent

placed on free will implicitly contains the idea that man can
free himself of his natural qualities, that he can effect his

choices on the basis of reason alone and thus make the world
accord to his will. At the start, this will is posited as a power
of consent. The superior life proceeds from a transformation
of the will that is the work of grace.

By these major anthropological innovations, Christianity

digs a ditch between the origin of man (God) and his temporal
existence.  It  withdraws  from the  relative  existence  of the
human  being the  ontological  anchoring that  is  now  reserved
for the soul. The relations between men are, of course, always
important,  but they  remain  secondary,  for the  simple  reason
that the common life of men, their collective life, is no longer
confused  with  their  being.  It  is thus  not  wrongly,  from this
point of view, that Hegel

was able to make the coming of

Christianity coincide with subjectivism.

It is above all in the Augustinian

tradition that the fact of

belonging to the supra-terrestrial city would be affirmed at the
expense  of  that  which  ties  man  to  those  similar  to  him.  ‘The
Christian ceases to be a part  of the political organism’, writes
Michel Villey, ‘he is a totality, an infinity, a value in himself.
He himself is an end superior to the temporal ends of politics
and  his  person  transcends the  state.  Here  is the  seed  of the
modern  freedoms  of the  individual,  which  will  be  opposable
t o the  state,  our  future  “human  rights”’.

By proclaiming

the metaphysical destiny of man, Christianity tends to divert
human justice from its interest in the world of the senses.

Augustine also develops with force the Christian idea

according to which the path towards the higher passes through

the interior: Noli foras ire, in teipsum redi; in interiore homine
habitat veritas (‘Do not go abroad. Return within yourself. In
the inward man dwells truth’).

The internal conscience

thus replaces the world as the locus of truth. It is through the
conscience, the locus of a secret freedom which is also the seat
of  the  soul,  that  one  can  go  to  God.  A  tendency  toward
reflexivity  is  introduced  into  Western  thought  through  this
theme,  which  will  later  be  transformed  into  pure  subjectivity.
The idea that the conscience is the locus of truth announces, in
fact,  the  modern  idea  of  a  private  sphere,  cut  off  from  the
public  sphere  and  detached  from  external  contingencies,
which would be the privileged place of the blossoming of the
individual.  Descartes

will resume the theme of

Augustinian  interiority  and  orient  it  in  a  new  direction  by
situating  the  sources  of  morality  in  the  cogito.  Privatisation,
one  could  say;  the  promotion  of  a  private  sphere  where  the
good  life  is  reduced  henceforth  to  the  ordinary  life,  begins
with this promotion of the conscience.

The belief in a sole God allows one, besides, to represent all

men  without  distinction  as  being  equally  sons  of  this  god.
Humanity  acquires  a  moral  significance  by  the  same  stroke.
Radicalising  a  universalist  tendency  already  present  in
Stoicism,

the Christian doctrine proclaims the moral unity

of mankind. ‘It is indisputable’, writes Olivier Mongin, ‘that
the egalitarianism which underlies the natural law of
belonging to a human community cannot be separated from its
Judaeo-Christian

context,

indeed

from

Evangelical

values’.

Although Christian love (agapè)

may well put the

accent on the ‘love of one’s neighbour’, by definition it never
stops at the neighbour. Even if it can admit a hierarchy of
pleasures

legitimate

certain

preferences,

the

metaphysical  level  it  does  not  know  any  borders.  The
neighbour, especially, is not so much ‘loved’ for himself as he
is  as  a  creature  of  God.  In  other  words,  he  is  loved  only  for
that by which he does not differentiate himself fundamentally
from  other  men  —  for  that  even  which  makes  him  similar  to
the  others  (the  fact  of  having  been  created  by  God).  Pierre
Manent has clearly shown that there are two ways for a man to
feel  related  to  other  men.  The  first,  quite  naturally,  involves
directing benevolence towards the one who has the most need
of  it,  for  example,  towards  the  one  who  suffers.  The
relationship between men then derives from compassion. The
second  way  is  quite  different:  ‘The  relationship  is  not
addressed to the visible and suffering body, it is addressed to
something invisible, to the soul, if you like, more precisely to
the dignity  of the person’.

This way is the Christian way.

Christian  universalism,  being  unlimited,  contains  the  seeds  of
all the later developments of the idea of fundamental equality.
Agapè  already  announces the  modern  ideal  of  practical
universal  benevolence:  all  human  beings  should  be  treated
with an equal respect to which their equal dignity gives them a
right.

The Church proclaims the universal fraternity of men in

Christ and their equality before God, but does not draw from
it, originally, any particular message about the social

organisation  of  humanity.  Under the  influence  of  Aristotle,
Thomas  Aquinas  continues  to  profess the  idea  of  an  ordered
cosmos  and  to  relate the  exercise  of the  law  to the  common
good.

Another decisive stage is about to be opened with the

appearance of the notion of subjective law. Historically this is
bound to the rapid development, in the Middle Ages, of the
nominalist

doctrine which, as a reaction to the theory of

‘universals’, claims that there is no being outside the
individual being, that is to say, that there exist in the universe
only individual beings. (This thesis is affirmed by William of
Ockham

in the context of a famous theological debate

bearing  on  the  question  of  knowing  how  one  can  justify  the
property  rights  of  the  Franciscans  when  they  have  taken  a
vow of poverty.) Considering only the individual as existing,
there  results  from  this  the  fact  that  the  collectivity  is  only  a
juxtaposition  of  individuals,  the  rights  becoming  naturally
legitimate individual powers.

Nominalism maintains besides that the natural law is not so

much the reflection of the divine order as of the divine will. Its
partisans argue that a natural order which would indicate good
and evil by itself would finally prevent God from deciding on
good  in  a  sovereign  way.  Taking  into  consideration  the
absolute  freedom  of  God,  it  follows that  no  necessity  is
imposed by itself in nature, which permits William of Ockham
to  declare that the law is not a just relation between things but
the reflection of a law willed by God. Thereby the universe is
already emptied of sense and of its intrinsic raison d’être.

The n there appears the Spanish Scholastic who, notably

under the influence of political Augustiniansm, derived justice
and  law  once  again  from  norms  derived  from the  moral  law.
(One  will  note that the  term justitia  is  only  derived  relatively
late from the Latin word jus: it is only from the Fourth century
that the ‘law’ was related to ‘justice’ in the sense of a universal
philosophical  notion.)  In the  Sixteenth  century,  under the
influence  of the two principal representatives of the School of
Salamanca,

Francisco de Vitoria and Francisco Suárez,

Scholastic  theology  passes  from  a  notion  of  objective  natural
law founded on the nature of things to a notion of a subjective
natural  law  founded  on  individual  reason.  At  the  same  time
that  he  affirms  the  political  unity  of  mankind,  the  Jesuit
Francisco  Suárez  declares  that  social  and  political  reality
cannot  be  explained  merely  by  the  natural  inclination  to
sociability:  an  act  of  will  is  also  required  of  men,  and  is  an
accord  of  their  wills.  (The  same  idea  was  later  taken  up  by
Pufendorf.) Francisco de Vitoria adds that ‘the right of people
is  what  natural  reason  has  established  among  all  peoples’.
Rights,  then,  become  synonymous  with  an  individual  faculty
conferred  by  the  moral  law,  with  a  moral  power  of  action.
With  subjective  law,  notes  Michel  Villey,  the  individual
becomes ‘the centre, the origin, of the legal universe’.

This evolution, sketched rather rapidly, allows us to

apprehend  the  fundamental  difference  existing  between
Classical natural law and modern natural law. While the nature
of  which  the  first  natural  law  spoke  was  that  of  the  cosmos
which,  as  an  extrinsic  principle,  defined  an  objective

perspective,  even  though  the  law  which  was  deduced  from  it
was  also  an  objective  law,  modern  natural  law  is  a  subjective
law wholly deducible from the subject. The principles which it
enunciates,  deduced  from  the  rational  nature  of  man,  are  the
principles according to which men should live, independently
of the existence of a particular society.

From a cosmological naturalism, one is thus, at first, passed

to  a  theological  naturalism.  Then,  in  a  later  period,  the
justification of rights was no longer sought in the fact that all
men have been ‘created in the image of God’ but in the nature
of  their  nature.  Right  was  no  longer  thought  of  as  derived
from  the  divine  law  but  from  human  nature  alone,
characterised  by  reason.  It  was  a  revolution  at  the  same  time
philosophical  and  methodological  that  will  have  immediate
political consequences.

The first modern theoreticians of human rights argue in turn

from the idea of a ‘state of nature’, an idea which one found
already in the Sixteenth century in the Spanish Jesuit
Mariana.

‘The right of nature, which writers commonly

call jus naturale’, writes Hobbes

at the opening of

Chapter  14  of  his  Leviathan,  ‘is the  liberty  each  man  hath  to
use  his  own  power  as  he  will  himself  for the  preservation  of
his  own  nature’.

‘Neither by the word right is anything

signified’, he adds elsewhere, ‘than that liberty which every
man hath to make use of his natural faculties according to
right reason’.

In the state of nature, law is a power which

man can make use of freely. And self-interest is the rule of
this law. For Hobbes, as for Locke who permanently seeks his

own  self-interest,  his  advantage,  his  utility.  It  is  therefore
because  he  thinks  he  finds  an  advantage  in  it  that  he  enters
into contractual relations with others (to guarantee his right to
property,  according  to  Locke;  in  order  to  defend  oneself
against  the  hostility  omnipresent  in  the  state  of  nature,
according to Hobbes).

Inheritor of nominalism, Hobbes also writes, ‘But

whatsoever is the object of many man’s Appetite or Desire;
that is it, which he for his part calleth Good’.

The formula

is immediately reversed: the desire and the will of each
individual determines his degree of good, and each individual
is the sovereign judge of his own happiness.

‘In one way,’ clarifies Charles Taylor, ‘to speak of a

universal,  natural  right  to  life  does  not  seem  much  of  an
innovation… The earlier way of putting it was that there was a
natural  law  against  taking  innocent  life.  Both  formulations
seem to prohibit the same things. But the difference lies not in
what is forbidden but in the place of the subject. Law is what I
must  obey.  It  may  confer  on  me  certain  benefits,  here  the
immunity  that  my  life,  too,  is  to  be  respected;  but
fundamentally I am under law. By contrast, a subjective right
is  something  which the  possessor  can  and  ought  to  act  on  to
put it into effect.’

The first rights are therefore, above all, rights to freedom.

Equality  is  only  the  condition  required  for  their  realisation.
This  priority  of  freedom  is  simply  explained.  Freedom,  the
expression  of  a  pure  being  in  itself,  an  incarnation  of  the

uniqueness  of  the  individual,  qualifies  the  nature  of  man
independently  of  all  social  relations.  Equality  is  certainly  a
correlation  of  freedom  defined  in  this  way  (if  everyone  is
comprised of a free and absolute desire to be oneself, then all
are in a way identical) but, contrarily to freedom, it requires a
minimum  of  social  life  to  acquire  a  significance.  In  certain
respects,  as  André  Clair  writes,  it  fulfils  ‘the  function  of  an
element  that  determines  and  transforms  freedom;  by  this
determination is formed the social relationship’.

The existence of men being considered as having preceded

their coexistence, the transformation of the simple plurality of
individuals into a society should be explained. The traditional
response is the contract or the market. Unlike an association in
the  biblical  sense,  the  social  contract  is  a  pact  contracted
between equal partners. Following the example of business, it
results  from  a  calculation  of  self-interest.  For  Locke,  the  aim
of  all  political  association  is  economic:  ‘The  great  and  chief
end,  therefore,  of  men’s  uniting  into  commonwealths,  and
putting  themselves  under  government,  is  the  preservation  of
their  property’.

Possessed naturally, the rights are,

besides, conceived on the model of the right to property. One
understands that in the Seventeenth and Eighteenth centuries,
the theory of rights was the privileged instrument used by the
bourgeoisie to succeed in playing a political role proportionate
to its economic weight.

But by the same token, politics loses its status of a cause to

become an effect. The fact of society being no more than the
consequence of a contract undertaken between individuals,

power  is  no  longer  an  organising  force  but  a  secondary
product  of  society,  a  superstructure  that  is  always  threatening
to  the  members  of  the  society.  (This  role  of  superstructure,
present  among  all  liberal  authors,  will  recur  in  Marx.)
Concomitantly the political relationship is found to be entirely
redefined on the basis of a new legal norm, corresponding to
the subjective rights of the individual. Civil society, finally, is
identified with the private sphere, that is to say, to that part of
the  society  shielded  from  the  political  life,  where  individuals
are thought to be able to act freely. ‘The philosophical stake of
modern natural law’, writes Marcel Gauchet, ‘...is going to be
the double redefinition of politics according to the subject: as
regards  the  political  element,  the  citizen,  as  the  subject  of
individual  right,  and  also,  as  regards  the  political  whole,  the
political community, as the collective political subject’.

Thus a triple revolution is accomplished. On the one hand,

the notion of will is substituted for the notion of order. On the
other hand, the individual has moved to the centre and the law
has  become  his  attribute.  Finally,  the  law  is  identified  with
‘justice’,  the  latter  having  henceforth  an  essentially  moral
complexion. With Hobbes and his successors, life in society is
conceived in view of the utility of each at the heart of a world
where nature as a unified totality has no more intrinsic value,
nor significance, nor finality. Right is henceforth an individual
property,  a  quality  inherent  in  the  subject,  a  moral  faculty
which  grants  permissions  and  authorises  demands.  Reason  is
conceived,  fundamentally,  as  a  simple  faculty  of  calculation.
The legal matter ceases to be the just solution (dikaion,

quod bonum est),

and becomes an ensemble of sanctioned

norms and conducts. The state and the law itself are no longer
anything but instruments destined to guarantee individual
rights and to serve the intentions of the contracting parties.

‘It is only by a strong usurpation at the same time furtive

and  violent’,  writes André  Clair,  ‘that,  at  the  turning  point  of
the  modern  age,  this  mutation  of  the  concept  of  right  which
has permitted the application of this concept to man has been
accomplished;  one  then  understood  right  as  a  property
essentially  present  in  every  human  being;  instead  of  being  a
system  of  distributing  and  awarding  lots  among  the  members
of a society (to the extent that it was defined primarily in terms
of distributive justice), right is now conceived with a complete
reversal  of  meaning  as  a  faculty  of  affirming  oneself  that
should  be  rendered  absolutely  effective  for  every  individual
vis-à-vis everybody else. Every philosophy of human rights is
thus  a  philosophy  of  subjectivity,  of  a  subjectivity  of  course
said to be universal, but recognised initially as individual and
unique.’

If human rights are part of the law, the latter then has

nothing more to do with what one understood by ‘law’ when
the latter was founded. The classical natural law has been
replaced by a modern natural law which argues from radically
different theoretical bases, and does not have before it
anything more than the platitude and manifest inadequacies of
legal positivism.

In reality, as their theological roots demonstrate, human

rights  are  only  law  contaminated  by  morality.  But  a  morality
which does not have anything to do with that of the Ancients,
insofar as it no longer defines what it is good to be, but what it
i s right  to  do.  Since the  right  precedes  and  commands the
good,  morality  is  no  longer  interested  in  what  has  a  value  in
itself,  or  in  what  we  should  admire  and  love.  It  is  henceforth
interested  only  in that  which  is  justifiable  from the  point  of
view of reason.

Such a morality derives from the biblical notion of ‘justice’.

It proposes a certain conception of ‘justice’ which, belonging
by  definition  to the  reign  of  ends,  cannot  constitute the
specific  aim  of  a  politically  determined  activity.  Bertrand  de
Jouvenel had already confirmed, with regard to the expression
‘modern natural law’, ‘The key word which does not figure in
the announcement is the word morality, and it is to this elided
noun that the  adjective  ‘natural’  is  related.  When  one  speaks
of  natural  law,  one  primarily  understands that the  foundation
of positive law is in morality’.

Human rights constitute the

legal custom of a moral demand of ‘justice’; they express a
legal means of conceiving and expressing this morality. It is in
this sense that, as Arnold Gehlen

was able to say, the

diffusion of the discussion of human rights derives from the
‘tyranny of moral hypertrophy’.

The dream of a united humanity, subject to the same norms

and living under the same Law, forms the basic fabric of this
discussion. The ideology of human rights posits unified
humanity at once as a given fact and as an ideal, as something
that is and something that should be; in other words, as a sort

of  potential  truth  that  cannot  be  verified  and  would  appear
fully  only  when  it  is  realised.  In  such  a  perspective,  the  only
differences admitted are ‘differences within the same’ (Marcel
Gauchet). The other differences are denied or rejected for the
sole  reason  that  they  cause  one  to  doubt  the  same.  The  key
word  is  that  men  are  everywhere  endowed  with  the  same
rights because, fundamentally, they are everywhere  the  same.
In  the  final  analysis,  the  ideology  of  human  rights  aims  at
subjecting  all  of  humanity  to  a  particular  moral  law
rehabilitating the ideology of the Same.

Excursus: The Church and Human Rights

The  theological  roots  of the  ideology  of  human  rights  have
been  described  many  times.  For  a  long  time,  however,  as
Jacques  Maritain

wrote, ‘the affirmation of rights

themselves

based

Christian

principles

appeared

revolutionary with regard to the Christian tradition’.

The

reason for that is well-known. It rests, from the historical point
of  view,  in the  aggressive  rationalist  character  of the  modern
formulation  of these  rights,  in the  climate  of  anti-clericalism
that  has  surrounded their  proclamation,  as  well  as  in the  anti-
religious  persecutions  of the  Revolution

that followed it.

Besides, from the doctrinal point of view, the Catholic critique
could  not  admit the  elimination  of  all  dimensions  of
transcendence  implied  by the  integral  subjectivisation  of
rights, an elimination which tends to transfer to man a certain
number  of  divine  prerogatives,  nor the

fact tha t this

subjectivisation opens the way to an unending demand which,
not being founded on any standard, leads to relativism.

On 23 April 1791, Pope Pius VI expressly condemned the

Declaration  of  Rights  of  1789,  accusing  the  articles  which
composed  it  of  being  ‘contrary  to  religion  and  society’.  This
condemnation was renewed for exactly a century. In 1832, for
example, Gregory XVI qualified the theory of human rights as
a  ‘veritable  delirium’,  the  same  opinion  being  formulated
again in the encyclical Quanta Cura of 1864.

Matters begin to evolve from the encyclical Rerum Novarum

(1891) of Leo XIII. From this date, under the influence, most
notably, of the thought of Father Luigi Taparelli
d’Azeglio,

whose Essai théorique sur le droit naturel

(1855) sought to give (or to give again) a theological content
to subjective right, the notion of human rights begins to be
introduced into the social thought of the Church.

Immediately after the Second World War, this development

was  rapidly  accelerated.  In  1963,  in  the  encyclical  Pacem  in
Terris, Pope John XXIII declared that he saw in the Universal
Declaration  of  Human  Rights  of  1948  ‘a  step  in  the  right
direction,  an  approach  toward  the  establishment  of  a  juridical
and  political  ordering  of  the  world  community’  (§  144).

On  7  December  1965,  the  pastoral  constitution  Gaudium  et
Spes,  adopted  in  the  context  of  the  Second  Vatican  Council,
affirmed  that  ‘the  Church,  therefore,  by  virtue  of  the  Gospel
committed  to  her,  proclaims  the  rights  of  man;  she
acknowledges and greatly esteems the dynamic movements of

today by which these rights are everywhere fostered’.

Three years later, Paul VI declared in his turn, ‘To speak of
human rights is to affirm a common property of
humanity’.

In 1974, before the General Assembly of the

United  Nations,  he  specified,  ‘The  Holy  See  gives  its  full
moral  support  to  the  ideal  contained  in  the  Universal
Declaration  as  to  the  progressive  deepening  of  the  human
rights  that  are  expressed  therein’.

John Paul II, finally,

would declare in 1979 that the Universal Declaration of
Human Rights ‘is a milestone on the long and difficult path of
the human race’.

The traditionalist Catholic milieus have, of course,

interpreted this change as a sign, among others, of the
‘rallying’ of the Church to ‘modern ideas’.

Even though

this  point  of  view  contains  some  truth,  the  reality  is  a  little
more  complex.  In  declaring  that  it  admits  human  rights,  the
Church understands above all that it recognises (and causes to
be recognised) that part in their genealogy that returns to it. It
does  not,  however,  subscribe  to  the  aspects  which  remain  in
its  eyes  contestable  in  their  present  formulation.  In  other
words,  the  approval  in  principle  given  henceforth  by  the
Church  to  the  doctrine  of  human  rights  refers,  first  of  all,  to
the  Christian  version  of  these  rights. As  François  Vallançaon
writes, ‘The Church is no more for human rights than against
them. It is favourable to human rights when they are well and
rightly  interpreted.  It  is  hostile  to  them  when  they  are  badly
and wrongly interpreted’.

Latin: ‘human rights’.-Ed.

The first known use of the expression ‘human rights’ appeared in the

book Historica Diplomatica Rerum Bataviarum by Volmerus, which
was published in 1537.-Ed.

Latin: ‘justice’.-Ed.

Latin: ‘to each his own’.-Ed.

Marcus Tullius Cicero (106-43 BCE) was a philosopher and famed

orator of the Roman Republic.-Ed.

De oratore [On the Orator], Book 1, Chapter 42.

Le Monde, 8 June 1993, p. 2.

‘The root of liberty is will as the subject thereof; but it is the reason

as its cause.’ From Thomas Aquinas, Summa Theologica: Volume
Two, Part Two, First Section (New York: Cosimo, 2007), p. 656.-Ed.

St. Thomas Aquinas (1125-1274) was a Dominican priest whose

writings became important in both theological and philosophical
debates.-Ed.

Georg W. F. Hegel (1770-1831) was one of the most important

philosophers of the Nineteenth century, being one of the principal
founders of the school known as German Idealism.-Ed.

St. Augustine (354-430) was an important bishop of the latter-day

Roman Empire and was one of the Church Fathers. He outlines his
idea of the heavenly city in his City of God.-Ed.

Philosophie du droit, vol. 1: Définitions et fins du droit, 3rd ed.

(Paris: Dalloz, 1982), p. 131.

This is from Augustine’s On True Religion, in Augustine: Earlier

Writings (Louisville: Westminster John Knox Press, 2006), p. 262.-
Ed.

René Descartes (1596-1650) was a French philosopher who

initiated many of the trends and ideas which have come to preoccupy
modern  philosophy  and  science  in  particular.  One  of  his  central
efforts  was  to  determine  how  one  can  be  certain  that  anything
actually exists. His most famous formulation is the proof he offered
in his Meditations on First Philosophy: cogito ergo sum, or ‘I think,
therefore  I  am’. Although  we  can  doubt  the  existence  of  objects  in
the  world,  the  fact  that  we  are  capable  of  thinking  about  them  is
proof positive that we ourselves exist.-Ed.

Stoicism was a school of philosophy first developed in ancient

Greece  which  taught  that  excessive  emotion  leads  to  errors  in
judgment.  In  this  case,  however,  de  Benoist  is  referring  to  the  fact
that  the  Stoics  taught  that  all  individuals,  including  slaves,  were
inherently equal before God and should be treated as such.-Ed.

‘Droits de l’homme, une généalogique complexe’, in Projet,

September-October 1988, p. 53.

Classical Greek: ‘love’. In Christianity, the word took on

connotations of pure, divine love.-Ed.

‘L’empire de la morale’, in Commentaire, Autumn 2001, p. 503.

Nominalism denies that there is any such thing as a universal

concept, maintaining that they are abstractions with no genuine
reality.-Ed.

William of Ockham (c. 1288-c. 1348) was an English Franciscan

friar  who  was  asked  to  review  the  concept  of  Apostolic  poverty  in
1327,  when  some  Franciscans  asserted  that  since  Jesus  and  his
apostles  had  owned  no  personal  property,  and  that  therefore,  in
contrast to the wealth exhibited at the Vatican, friars should live by
begging  alone  and  that  the  fact  that  friars  sometimes  used  property
did  not  imply  that  they  held  ownership  of  property.  He  also

maintained that the Pope himself was a heretic. This doctrine was not
accepted by the Church. His text on this debate is ‘A Letter to the
Friars Manor’.-Ed.

The School of Salamanca refers to a theological school which

flourished in Sixteenth-century Spain. The School addressed many
issues, among them being the affirmation of the idea that private
ownership of property is a right and that individuals have the right to
enjoy that property independently of the needs of their community.-
Ed.

La formation de la pensée juridique modern (Paris: Montchrétien,

1975), p. 663.

Juan de Mariana (1536-1624), in The King and the Education of the

King, asserts that following the Fall of Man, humanity in the ‘state of
nature’ of absolute individual freedom, became increasingly subject
to corruption, greed and violence which culminated in the wealthy
and powerful realising that they could terrorise and exploit the weak
through the construction of social hierarchies. The origins of society
are therefore rooted in corruption rather than in an effort to improve
the human situation.-Ed.

Thomas Hobbes (1588-1679) was an English political philosopher

who laid many of the foundations of modern liberal societies.-Ed.

Leviathan (Cambridge: Cambridge University Press, 1991), p. 91.

De cive, or The Citizen (New York: Appleton-Century-Crofts,

1949), p. 27.

Leviathan, p. 39.

Sources of the Self: The Making of Modern Identity (Cambridge:

Cambridge University Press, 1989), p. 11.

Droit, communauté et humanité (Paris: Cerf, 2000), p. 62.

From The Second Treatise of Government , in John Locke: Political

Writings (Indianapolis: Hackett Publishing, 2003), p. 73.

‘Les tâches de la philosophie politique’, in La Revue du MAUSS,

first quarter 2002, p. 282.

Classical Greek: the exact meaning is disputed, but it generally

means ‘what is right’.-Ed.

Latin: ‘that which is best’.-Ed.

Droit, communauté et humanité, pp. 63-64.

‘L’idée du droit naturel’, in Le droit naturel (Paris: PUF, 1959), p.

162.

Arnold Gehlen (1904-1976) was a German philosopher who was

active in the Conservative Revolution. He joined the Nazi Party in
1933 and remained in its ranks until the end of the war, being drafted
into the Wehrmacht in 1943. After post-war denazification, he
continued to write and teach, and his ideas remain influential on the
German Right to this day.-Ed.

Moral und Hypermoral: Eine pluralistische Ethik (Frankfurt am

Main: Athenäum, 1969), chapters 10 and 11. An analogous argument,
founded on the critique of moral universalism, has been repeated
more recently by Hans Magnus Enzensberger in Civil Wars: From
L.A. to Bosnia (New York: The New Press, 1994).

Jacques Maritain (1882-1973) was a French Catholic philosopher

who believed that Christian ethics are a necessary component of
political systems.-Ed.

Natural Law: Reflections on Theory and Practice (South Bend: St.

Augustine’s Press, 2001), p. 79.

The French Revolution of 1789.-Ed.

Cf. Louis de Vaucelles, ‘Les droits de l’homme, pierre

d’achoppement’, in Projet, September-October 1988, pp. 115-128.

Luigi Taparelli (1793-1862) was an Italian Jesuit scholar who was

concerned with the Church’s way of dealing with the social changes
being  brought  about  as  a  result  of  the  Industrial  Revolution.  He  is
credited  with  coining  the  term  ‘social  justice’.  He  viewed  modern
societies  as  being  comprised  of  various  sub-societies,  with
individuals belonging primarily to one of these rather than to society
as a whole.-Ed.

From

the

Vatican

Web

site

(www.vatican.va/holy_father/john_xxiii/encyclicals/documents/hf_j-
xxiii_enc_11041963_pacem_en.html).-Ed.

From

the

Vatican

Web

site

(www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-
ii_cons_19651207_gaudium-et-spes_en.html).-Ed.

From a message delivered on the occasion of the 20th anniversary

of the Declaration of Human Rights on 22 April 1968.-Ed.

From a message to the President of the 28th General Assembly of

the United Nations on the occasion of the 25th anniversary of the
Universal Declaration of Human Rights on 10 December 1973.

Cf. René Coste, L’Église et les droits de l’homme (Paris: Desclée,

1982);  M.  Simoulin,  ‘L’Église  et  les  droits  de  l’homme’,  in   Les
droits de l’homme, special issue of Vu de haut (Escurolles: Fideliter,
1988);  and  Giorgio  Filibeck,  Les  droits  de  l’homme  dans
l’enseignement  de  l’Église,  de  Jean  XXIII  à  Jean-Paul  II  (Vatican

City: Libreria Editrice Vaticana, 1992).

Cf. notably Jean Madiran, Les droits de l’homme — DHSD (Maule:

Éditions de Présent, 1988) and L’envers des droits de l’homme (Issy-
les-Moulineaux: Renaissance catholique, 1993). (The quote from
John Paul II is from his address to the 34th General Assembly of the
United Nations on 2 October 1979, available at the Vatican Web site
[http://www.vatican.va/holy_father/john_paul_ii/speeches/1979/october/documents/hf_jp-
ii_spe_19791002_general-assembly-onu_en.html].-Ed.)

‘Les droits de l’homme: analyse et critique’, in La Nef, February

1999, p. 26.

2. IN SEARCH OF A FOUNDATION

When UNESCO

had decided, in 1947, to launch a new

Universal  Declaration  of  Human  Rights  — the  one,  indeed,
that would be solemnly proclaimed on the 10 December 1948
b y the  General  Assembly  of the  United  Nations  —  its
directors  undertook  to  proceed  to  a  vast  preliminary  inquiry.
Notably, at the initiative of Eleanor Roosevelt, an international
committee was constituted in order to collect the opinions of a
certain  number  of  ‘moral  authorities’.  Around  150
intellectuals  from  all  countries  were  asked  in this  way  to
determine the  philosophical  basis  of the  new  Declaration  of
Rights. This approach ended in failure, and its promoters had
to

limit themselves

registering the irreconcilable

divergences between the responses obtained. Since no accord
emerged, the Commission on Human Rights of the UN
decided not to publish the results of this inquiry.

In his response, Jacques Maritain showed that he had no

illusions,  declaring  that  as  regards  human  rights  ‘a  practical
accord  is  possible,  [but]  a  theoretical  accord  is  impossible
among  intellectuals’.  It  is,  however,  evident  that  it  is  difficult
to speak of human rights without a precise conception of man
considered  as  being  the  bearer  of  these  rights.  No  consensus
has ever been established on this point. Not having reached an
accord,  one  thus  decided  to  give  up  justifying  what  one
wished  to  affirm.  The  authors  of  the  Universal  Declaration
formulated its text in a consensual vision not corresponding to
reality. ‘The Declaration’, affirms François Flahaut, ‘had to be

accepted by all on the condition that nobody ask what justifies
it. That came back to a question of an imposition of
authority’.

René Cassin

was accustomed to saying that human rights

rest ‘on an act of faith in a better tomorrow and the destiny of
man’.

Such an ‘act of faith’ would thus be justified by its

aims. ‘These aims’, writes Julien Freund, ‘we pose as norms,
thus we affirm them dogmatically as valid and worthy of
being pursued; they do not have the incontrovertible character
of a scientific proposition’.

It results from this that the

conception of man on which the theory of rights rests derives
not from knowledge but from opinion. From this sole fact, in
the  manner  of  a  religion  —  every  belief  is  valid  only  to  the
exact extent to which one believes in it — they can have only
a wishful validity, that is to say they are imposed only insofar
as  one  accepts  to  see  them  imposed,  and  that  they  have  no
other  validity  but  that  which  one  decides  to  accord  them.
‘Every  coherent  reflection  on  human  rights’,  repeats  Julien
Freund,  ‘can  only  proceed  from  the  following  fundamental
fact:  they  have  not  been  established  scientifically,  but
dogmatically’.

‘Human rights’, adds François de Smet,

‘cannot escape their categorisation as an ideology. On account
of this they are exposed to criticism’.

Even the definition of man of which the theory of rights

speaks is less evident than it appears. The proof of this is that
many ‘human rights’ have been extended only progressively
to women and to diverse other categories of human
populations.

One may recall, as a symbol, that the two

Western countries that vigorously maintained the institution of
slavery for the longest time, France and the United States, are
also those that were the first to proclaim human rights. Many
of the authors of the American Declaration of Independence
of 1776, which included a defence of human rights, were,
besides, themselves slave-owners.

There is not any more doctrinal or philosophical consensus

as  regards  the  definition  of  rights.  ‘A  sort  of  vagueness
envelops  the  notion  itself  of  fundamental  rights’,  the  jurist
Jean  Rivero  recognises.

When one speaks of a ‘human

right’,  does  one  mean  that  this  right  possesses  an  intrinsic
value, an absolute value or an instrumental value? That it is of
such  importance  that  its  realisation  should  take  precedence
over  all  other  considerations,  or  that  it  just  counts  among  the
things  that  are  indispensable?  That  it  gives  a  power  or  a
privilege?  That  it  permits  an  immunity  or  that  it  confers  an
immunity? There are as many responses as there are questions.

The critiques of the theory of rights have often underlined

its vague, but also contradictory character. For example,
Taine

wrote about the Declaration of 1789, ‘most of the

articles are abstract dogmas, metaphysical definitions, more or
less  literary  axioms,  that  is  to  say,  more  or  less  false,  now
vague  and  now  contradictory,  open  to  various  interpretations
and  to  opposite  constructions,  these  are  good  for  platform
display  but  bad  in  practice,  mere  stage  effect,  a  sort  of
pompous  standard,  useless  and  heavy...’.

Analogous

words are found in all the authors of the Counter-Revolution.

That there has always been disagreement concerning the

scope  and  the  content  of  human  rights  cannot  be  contested.
Article  2  of  the  Declaration  of  1789,  for  example,  makes  the
right  of  ‘resistance  to  oppression’  one  of  the  natural  and
inalienable  rights.

Kant, on the other hand, denies the

existence of such a right and goes so far as to advocate the
duty of obedience to dictatorships.

He justifies this denial

by  affirming  that  right  cannot  ever  be  effected  except  by  the
law,  which  means  that  a  juridical  state  is  possible  only  by
submission  to  the  legislative  will  of  the  state.  (Natural  law  is
here  changed  abruptly  into  positive  law.)  The  Declaration  of
1789 stipulates also, in the manner of Locke, that the right to
property is ‘inviolable and sacred’. The Declaration of 1948 is
careful  not  to  take  this  formula  into  account.  The  majority  of
the  defenders  of  the  rights  of  peoples  to  self-determination
dissociate  people  and  state,  which  is  indispensable  if  one
wishes  to  defend  the  rights  of  minorities.  But  Hans
Kelsen,

theoretician of the state under the rule of law,

expressly  refuses  this  distinction.  The  principle  of  the  non-
retroactivity  of  the  laws,  held  in  1789  as  an  inalienable  right,
has  been  abandoned  regarding  ‘crimes  against  humanity’.
Freedom  of  expression,  guaranteed  unconditionally  in  the
United States as one of the human rights, is not in France, the
other  ‘country  of  human  rights’,  on  the  pretext  that  certain
opinions  do  not  merit  being  considered  as  such.  It  is  equally
possible  in  the  United  States  to  sell  one’s  blood,  whereas
French  law  renders  null  and  void  any  commercial  contract
related to a product of the human body. One can multiply the

examples.

Human rights can also be shown to be internally self-

contradictory.  In  a  general  way,  it  is  common  that  rights
originating  from  positive  freedom  come  into  contradiction
with  those  that  originate  from  negative  freedom:  the  right  to
work,  for  example,  can  have  as  an  obstacle  the  right  to
property  or  the  right  of  free  initiative.  French  law  has,  since
1975, guaranteed the right to abortion, but the text of the laws
on  bioethics  adopted  on  23  June  1994  at  the  National
Assembly  prohibits  experiments  on  embryos,  alleging  the
need for ‘respect of the human being from the commencement
of  life’.  If  one  believes  that  the  embryo  is  not  yet  a  human
being,  one  fails  to  see  why  it  would  be  prohibited  to
experiment on it. If one believes that it is, one fails to see how
abortion can be justified.

How does one untangle in these conditions the ‘true’ rights

from the ‘false’? How does one prevent ‘human rights’ from
becoming an all-purpose expression, a mere flatus vocis

[15]

having only the ever-changing meaning that one attributes to it
in  one  circumstance  or  another?  Jean  Rivero  observes  for  his
part  that  the  ‘major  paradox  of  the  fate  of  human  rights  for
two  centuries  is  doubtless  the  contrast  between  the  withering
of their ideological roots and the development of their content
and  their  audience  to  a  universal  level’.

This is another

way of saying that the more the discussion of human rights
extends, the more the uncertainty regarding their nature and
bases grows.

Now, this question of bases is posed nowadays with a quite

particular acuteness. It is, in fact, only recently, as Marcel
Gauchet says, that the problem of human rights ‘has ended up
leaving the books to make itself effective history’.

From

the  Nineteenth  century,  the  fashionableness  of  the  theory  of
human  rights  had  been  reduced,  in  fact  suspended,  under  the
influence  of  historicist  theories,  then  revolutionary  doctrines.
To  think  in  terms  of  the  movement  of  history,  in  terms  of
progress, necessarily led to the relativisation of the importance
of law. At the same time, the advent of historical time brought
in  a  certain  discrediting  of  the  abstract  intemporality
characterising  a  ‘state  of  nature’  from  whence  the  rights
proceeded.  The  fall  of  the  totalitarian  regimes,  the  fading  of
revolutionary hopes, the crisis of all the representations of the
future,  and  notably  the  idea  of  progress,  have  very  logically
coincided with a return of the ideology of rights with renewed
force.

Historically, from 1970, human rights have been opposed to

the  Soviet  system.  Since  the  collapse  of  the  latter  —  by  a
remarkable coincidence, the year of the fall of the Berlin Wall
was also that of the bicentenary of the Declaration of 1789 —
they  have  been  employed  in  diverse  ways  to  disqualify
regimes  or  practices  of  all  sorts,  in  particular  in  the  Third
World,  but  also  to  serve  as  a  model  for  new  national  and
international  policies.  The  European  Union  has  itself  given
them a position of the highest rank,

while, for some years,

in authors like Rawls, Habermas, Dworkin and many others,
one witnesses a new attempt at a foundation of the political

community on law. The question of the foundation of human
rights is thus posed anew.

In its canonical version, in Locke as in Hobbes, the theory

of rights ‘proceeds by a mythical rationalisation of the origin.
It  projects  into  the  abstract  past  of  the  state  of  nature,  a  past
beyond  history,  the  search  for  a  primordial  norm  in  itself
atemporal  with  respect  to  the  composition  of  the  political
body’.

One can qualify this procedure as cognitive-

descriptive.  Rights,  in  this  view,  are  that  which  men  are
considered to ‘possess’ by virtue of the mere fact that they are
men.  The  individual  draws  his  inalienable  rights,  just  as  so
many  constituent  attributes  of  his  being,  from  the  ‘state  of
nature’. This is the classical legitimisation by human nature.

This legitimisation appears clearly in the great basic texts.

The  American  Declaration  of  Independence  declares  that  all
men  are  ‘created  equal’,  and  that  they  are  endowed  by  their
Creator  with  a  certain  number  of  inalienable  rights.  The
Universal  Declaration  of  1948  proclaims  right  from  its  first
article:  ‘All  human  beings  are  born  free  and  equal  in  dignity
and in rights. They are endowed with reason and conscience’.
It  is  because  they  are  natural  and  innate  that  the  rights  are
inalienable and inalterable.

Many defenders of the ideology of these rights still hold

today  to  this  reasoning.  Francis  Fukuyama,  for  example,
affirms  that  ‘any  serious  discussion  of  human  rights  must
ultimately be based on some understanding of human ends or
purposes,  which  in  turn  must  almost  always  be  based  on  a

concept of human nature’.

According to him, only ‘the

existence of a single human nature shared by all the peoples of
the world can provide, at least in theory, a common ground on
which we can base universal human rights’.

That is why

he remains a partisan of the use of the language of rights
(rights talk), this being ‘more democratic, universal and easily
grasped’. He adds that the discourse on rights is valid because
all men have the same preferences, which shows that they are
‘in the end fundamentally similar’.

One finds this

reasoning, of the Lockean type, again among conservatives
like Tibor R. Machan,

Eric Mack, Douglas Rasmussen or

Douglas J. Den Uyl, in a perspective which is also inspired by
the libertarian Objectivism of Ayn Rand.

This approach comes up against very great difficulties,

beginning with the fact that there is no consensus on ‘human
nature’.  In  the  course  of  history,  the  notion  of  ‘nature’  itself
has  been  the  object  of  the  most  contradictory  definitions.  For
the  Ancients,  human  nature  orders  the  individuals  according
to  the  common  good.  For  the  Moderns,  it  legitimises  their
right  to  pursue  all  sorts  of  ends,  with  the  result  that  they
fundamentally have only this right in common. Besides, once
one has demonstrated that there exists a human nature, one has
not at all demonstrated that it follows that man has rights in the
sense which the doctrine of human rights gives to this word.

Hegel had already confirmed that it is difficult to invoke

‘nature’ to conclude from it the equality of men among
themselves: ‘We must rather say that by nature men are only
unequal’.

The life sciences have not belied this point of

view.  The  study  of  the  biological  nature  of  man,  which  has
not ceased to progress in recent decades, shows that ‘nature’ is
not very egalitarian and above all that, far from the individual
being  the  basis  of  collective  existence,  it  is  much  rather  the
collectivity  which  constitutes  the  basis  of  the  existence  of  the
individual: for Darwin, as for Aristotle, man is, first of all, by
nature  a  social  animal.  In  an  article  which  caused  a  great
sensation, Robin Fox wrote that one could also draw from this
study  of  the  biological  nature  of  man  conclusions  going
directly  against  the  ideology  of  human  rights,  for  example  a
legitimisation  of  murder,  of  vengeance,  of  nepotism,  of
arranged marriage or of rape: ‘There is nothing in the “laws of
nature”  that  says  the  kin  group  (the  pool  of  genes  related  by
descent)  should  not  seek  to  enhance  the  reproductive  success
of  its  members’.

Fox drew the conclusion from this that

the  ‘human  rights’  of  which  the  ideology  of  human  rights
speaks  either  go  against  what  one  effectively  observes  in
nature,  or  concern  things  on  which  nature  says  strictly
nothing.  One  finds  again  a  similar  conclusion  in  Paul
Ehrlich.

Baudelaire,

more radical, affirmed: ‘Nature

can counsel nothing but crime’.

Another difficulty bears on the scope of what one can draw

from a discovered fact. The liberal Anglo-Saxon tradition has
not ceased affirming, following David Hume, G. E. Moore, R.
M. Hare and some others, that one cannot derive conscience
from being: the error of ‘naturalism’

(naturalistic fancy)

would seem to consist in believing that nature can provide a
philosophical justification to morality or law. This affirmation

is  extremely  questionable,  for  reasons  which  we  shall  not
demonstrate  here.  But  from  a  liberal  point  of  view,  it  comes
into  contradiction  with  the  idea  that  the  foundation  of  human
rights  is  to  be  sought  in  human  nature.  To  suppose,  even  in
effect,  that  man  ever  had,  in  the  ‘state  of  nature’,  the
characteristics which the ideology of rights attributes to him, if
one cannot derive a conscience from being, if one cannot pass
from  an  indicative  finding  to  an  imperative  prescription,  one
cannot  see  how  the  fact  of  ‘rights’  can  justify  the  demand  to
preserve  them.  Such  is  precisely  the  argument  which  Jeremy
Bentham

opposed to human rights: taking into

consideration  the  division  between  law  and  fact,  even  if
human nature is what the partisans of the rights say of it, one
cannot  derive  any  prescription  from  it.  The  same
argumentation is found again, in another perspective, in Hans
Kelsen,  as  in  Karl  Popper.

It has been repeated, more

recently, by Ernest van den Haag.

The idea of a ‘state of nature’ having preceded any form of

social  life  finally  seems  to  be  increasingly  less  tenable  today.
Certain  defenders  of  human  rights  recognised  it  openly.
Jürgen  Habermas,  for  example,  does  not  hesitate  to  say  that
‘the  conception  of  human  rights  should  be  liberated  from  the
metaphysical weight that is constituted by the hypothesis of an
individual as existing before all socialisation, and coming into
the  world,  as  it  were,  with  innate  rights’.

One then tends

to make of the isolated individual a necessary rational
hypothesis or a useful narrative fiction. Rousseau

already

evoked this state of nature that ‘perhaps never did exist’, but

‘of which, it is, nevertheless, necessary to have true
ideas’.

The state of nature is a ‘necessary fiction’ allowing

one to imagine what the condition of men would be like
before they are subjected to any form of obedience, that is to
say, before any social relations. One deduces from it that, in
such a state, they would be ‘free and equal’. This is evidently
pure speculation. ‘Of course’, writes Raymond Aron,

‘the

formulas like “men are born free and equal in rights” do not
stand up to scrutiny: “to be born free”, in the proper sense,
signifies nothing’.

The discourse on human rights that has reappeared today is

therefore  much  more  problematic  than  that  which  was
enunciated  in  the  epoch  of  the  Enlightenment.  ‘If  there  is  a
return  of  rights’,  observes  Marcel  Gauchet,  ‘it  is  a  right
without  Nature.  We  have  the  content  of  subjective  right
without  the  support  that  permitted  its  elaboration’.

human  nature  is  not  what  one  believed  to  know  of  it  in  the
Eighteenth  century,  on  what  can  one  found  the  doctrine  of
natural  rights?  If  the  future  of  society  no  longer  corresponds
any  longer  to  an  emergence  from  the  ‘state  of  nature’,  how
does  one  explain  it  in  a  way  compatible  with  the  theory  of
rights, that is to say with a theory centred on the individual?

Certain authors, like James Watson,

think that it would

be better to stop reasoning in terms of the ‘rights’ of man and
to limit oneself to speaking of ‘needs’ or of ‘human interests’.
But this method, which comes back to replacing the moral
approach with an approach of a Utilitarian or consequentialist
type, collides with the fact that no consensus can be

established  on  the  value  of  ‘interests’  or  on  the  hierarchy  of
‘needs’,  taking  into  account  the  eminently  subjective  and
intrinsically  conflicting  character  of  these  notions.  Besides,
interests are by definition always negotiable, while values and
rights  are  not  (the  right  to  freedom  cannot  be  reduced  to  the
interest  that  an  individual  may  have  in  being  free).  Finally,
human rights cannot be founded on Utilitarianism,

since it

posits as a principle that it is always legitimate to sacrifice
certain men if this sacrifice allows one to increase the ‘amount
of happiness’ of a greater number of men.

A more ambitious alternative is that of Kantian philosophy,

which  advocates  a  morality  founded  on  the  independence  of
the  will.  ‘The  true  moral  choice’,  affirms  Kant,  ‘implies  the
freedom  of  the  will,  that  is  to  say  a  free  will  which  is  self-
determined  in  freeing  itself  of  all  natural  causality’.  Defining
as just every action ‘insofar as it can coexist with the freedom
of  every  other  in  accordance  with  a  universal  law’,  Kant
makes freedom the sole ‘original right belonging to every man
by virtue of his humanity’.

In this view, the pure essence

of  law  resides  in  human  rights,  but  the  latter  are  no  founded
on  human  nature,  but  on  dignity  (Würde).  To  respect  the
dignity of man is to respect the respect of natural law which he
bears  in  himself.  ‘Humanity  itself  is  a  dignity’,  writes  Kant,
‘for a human being cannot be used merely as a means by any
human  being  (either  by  others  or  even  by  himself)  but  must
always be used at the same time as an end. It is just in this that
his  dignity  (personality)  consists,  by  which  he  raises  himself
above all other beings in the world that are not human beings

and yet can be used, and so over all things’.

Compared to the preceding theoreticians of human rights,

the change of perspective is radical. ‘Originally’, recalls Pierre
Manent,  ‘human  rights  are  the  natural  rights  of  man,  those
which are inscribed in his elementary nature... Human dignity,
in  contrast,  is  constituted,  according  to  Kant,  in  holding  a
radical or essential distance in relation to the needs and desires
of  one’s  nature’.

The moral theory of Kant is in fact a

deontological theory, that is to say, that it does not depend on
any  substantial  proposition  concerning  human  nature  or  the
human aims which would derive from this nature. Reason no
longer  receives  a  substantial  definition  within  it  but  a  purely
procedural  definition,  which  means  that  the  rational  character
of  an  agent  is  demonstrated  by  his  manner  of  reasoning,  by
his manner of arriving at a result, and not  by  the  fact  that  the
result of his reasoning is substantially exact, in the sense of a
conformity  to  an  external  order.  Emanating  from  will  alone,
the moral law expresses the status of the rational agent. This is
an  extension  of  the  Cartesian  theory  of  a  ‘clear  and  distinct’
thought,  itself  derived  from  the  Augustinian  conception  of
interiority.  For  Kant,  the  decisive  procedure  of  reason  is
universalisation.  From  that  time,  not  only  are  laws  no  longer
derived  from  human  nature,  but  they  are  in  a  certain  way
opposed  to  it.  To  act  morally  is  to  act  according  to  duty,  not
by  natural  inclination.  The  moral  law  is  no  longer  imposed
from  outside,  it  is  prescribed  by  reason  itself.  The  natural
order  no  longer  determines  our  ends  and  our  normative
objectives,  we  are  henceforth  obliged  to  produce  the  moral

law  from  ourselves.  That  is  why  Kant  recommends  that  one
conform  no  longer  to  nature  but  to  construct  an  image  of
things  by  following  the  canons  of  rational  thought.  Freedom,
in Kant, is not a tendency or an attribute of human nature, but
the  very  essence  of  human  will  —  an  absolutised  faculty,
detached  from  all  contingency,  a  faculty  permitting  one  to
detach oneself from all forms of determinism and whose only
criterion  is  the  relationship  to  the  moral  universe  of  abstract
humanism.  (An  idea  rather  close  to  the  Calvinist  doctrine:
human  nature  is  sinful,  and  the  moral  attitude  consists  in
freeing oneself from all desire or natural tendency. One finds
this  idea  already  in  Plato.)  The  abstraction  of  human  rights,
affirmed  at  an  eminent  level,  thus  places  nature  out  of  the
picture. At the limit, humanity is defined as the capacity to free
oneself  from  nature,  to  emancipate  oneself  from  all  natural
determination,  since  every  given  a  priori  determination
contradicts the independence of the will.

This theory, which one finds also in John Rawls

and

numerous other liberal authors, exposes itself to a well-known
reproach: the principles having been posited a priori, how can
one be sure that they are applicable to empirical reality? And
how does one reconcile the reconcile the disregard for human
nature with the findings of the life sciences, which establish its
reality with ever-increasing force?

Hegel had already

underlined  that  Kantian  universalism,  in  failing  to  take  into
account  social  morality  (Sittlichkeit),  that  is  to  say,  the
collection  of  moral  obligations  towards  the  community  to
which  one  belongs  which  results  from  the  sole  fact  of

belonging  to  it  —  obligations  largely  founded  on  established
customs  and  practices  —  is  incapable  of  supplying  concrete
norms for action. Remaining powerless to fix contents to duty
and to distinguish morally good actions, it does not succeed in
departing from a formal subjectivism. Moral autonomy is thus
acquired  only  at  the  expense  of  emptiness:  the  ideal  of
detachment  refers  back  to  a  freedom  sought  for  itself,  to  a
freedom  without  content.  But  the  same  ideal  refers  back  also
to  a  certain  ethnocentrism,  for  there  cannot  be  formal  and
procedural rights which do not imply, in a surreptitious way, a
substantial  content:  ‘The  declaration  of  right  is  also  an
affirmation  of  value’  (Charles  Taylor).  Liberal  ethics  is
characterised collectively by the search for a formal principle,
axiologically  neutral,  which  can  constitute  a  universalisable
criterion. This axiological neutrality is always artificial.

As for reason, it too can only remain mute about its own

foundations.  Alasdair  MacIntyre  has  shown  that  it  is  never
neutral  or  atemporal,  but,  on  the  contrary,  always  tied  to  a
cultural  and  socio-historical  context.

Kantian reason

believes  that  it  is  able  to  recognise  a  universal  law,  that  is  to
say,  a  world  that  would  be  external  to  it,  when  it  can  never
produce  it  except  from  itself.  Always  dependent  on  its
particular  incarnations,  it  cannot  be  disassociated  from  a
plurality  of  traditions.  The  notion  of  dignity  is  not  less
equivocal.  We  know  that  the  modern  theoreticians  of  human
rights,  even  when  they  do  not  refer  explicitly  to  the
philosophy  of  Kant,  make  great  use  of  it.

The word

‘dignity’, absent from the Declaration of Rights of 1789,

figures  in  the  preamble  of  the  Universal  Declaration  of  1948
which  expressly  evokes  ‘the  dignity  inherent  in  all  the
members  of  the  human  family’.  This  dignity  is  evidently  the
character of an abstract humanity. It ‘is always attached to the
intrinsic  humanity  freed  of  all  socially  imposed  regulation  or
norm’,  writes  Peter  Berger.

We know that, historically,

dignity, attributed to everybody, has replaced honour, which
is only present in some.

In its present definition, the term possesses a certain

religious resonance. The idea of a dignity that is equal in every
man belongs in fact neither to legal language nor to political
parlance, but to the language of morality. In the biblical
tradition, dignity has a precise meaning: it elevates man above
the rest of Creation, it assigns to him a separate status. It posits
him, as the sole titular of a soul, as radically superior to other
living beings.

It also has an egalitarian significance, since

no man can be regarded as more or less worthy than another.
That  means  that  dignity  has  nothing  to  do  with  the  merits  or
the  qualities  which  are  proper  to  each  person,  but  that  it
already constitutes an attribute of human nature. This equality
is  placed  in  relation  to  the  existence  of  a  single  god:  all  men
are  ‘brothers’  because  they  have  the  same  Father  ( Malachi
2:10), and because they have all been created ‘in the image of
God’  ( Genesis  9:6).  As  the  Mishnah

[53]

says, ‘Man was

created  as  a  single  specimen  so  that  nobody  can  say  to  the
other:  my  father  is  superior  to  yours’  ( Sanhedrin  4:5).
Although  insisting  on  love  more  than  on  justice,  Christianity
has  taken  responsibility  for  the  same  idea:  dignity  is,  first  of

all, the quality by which man can rightly be posited as the
master of those without a soul, the centre of Creation.

In Descartes, the affirmation of human dignity is developed

from the evaluation of interiority as a place of self-sufficiency,
as  a  place  of  the  autonomous  power  of  reason.  In  the
Moderns,  dignity  is  always  an  attribute,  but  instead  of  this
attribute being received from God, it becomes a characteristic
trait  that  man  possesses  directly  from  his  nature.  Finally,  in
Kant,  dignity  is  directly  associated  with  moral  respect.  ‘One
could say’, writes Pierre Manent, ‘that the Kantian conception
is  a  radicalisation,  and  therefore  a  transformation,  of  the
Christian  conception  that  St.  Thomas  Aquinas  in  particular
had  stressed.  If,  for  St.  Thomas  Aquinas,  human  dignity
consists in freely obeying the natural and divine law, for Kant
it  consists  in  obeying  the  law  which  man  gives  to
himself’.

Whatever the meaning one gives to it, dignity becomes

problematic  as  soon  as  one  posits  it  as  an  absolute.  One
understands  what  being  ‘worthy  of’  means  relative  to  such
and such a thing, but ‘worthy’ in itself? Is dignity, such as the
theory  of  rights  conceives  it,  a  right  or  a  fact?  A  quality  of
nature or of reason? In Rome, dignitas was closely bound to a
relation  of  comparison  necessary  to  determine  the  qualities
that  caused  one  to  merit  something,  to  be  worthy.  Cicero:
Dignitas est alicujus honesta et cultu et honore et verecundia
digna auctoritas.

[55]

In this view, evidently dignity could not

be equally present in everybody.

Modern dignity, on the

contrary, is an attribute which cannot be increased or

decreased since it is the reality of everyone. The man who is
worthy is no longer opposed to the man who is unworthy, and
the ‘dignity of man’ becomes a pleonasm since it is the fact of
being a man, whoever one may be, that makes one worthy.
However, if man should be respected by virtue of his dignity
and what his dignity is based on is his right to respect, one is
in a circular argument.

Finally, if everybody is worthy, it

is as if nobody were: the factors of distinction must simply be
sought elsewhere.

Conscious of the difficulties that the legitimation of human

rights by human nature raises, the modern heirs of Kant

abandon their cognitivistic type of method in order to adopt a
prescriptivist  approach.  But  then,  strictly,  the  rights  that  they
defend  are  no  longer  rights.  They  are  only  moral  exigencies,
‘human  ideals’  which  represent,  at  best,  only  what  one  needs
to  posit  as  rights  to  arrive  at  a  social  state  judged,  rightly  or
wrongly, as desirable or better. They then lose all compelling
force, for ideals do not in themselves confer any right.

Another manner of founding human rights consists in

making  them  rest  on  the  fact  of  belonging  to  the  human
species. Humanity, as in the Bible, is then presented as a ‘big
family’, all the members of which would be ‘brothers’. Those
who adopt this method observe that all men are related to one
another,  from  the  fact  of  their  common  membership  in  the
human species. They then affirm that it is on the foundation of
this relationship that one should attribute to them or recognise
in  them  the  same  rights.  André  Clair  thus  proposes  to  make
human rights rest not on equality or freedom but on the ‘third

right’  of  fraternity.  By  the  same  stroke,  the  individualist
charge  of  the  Classical  theory  of  rights  would  find  itself
defused:  ‘If  one  thinks  of  fraternity  in  relation  to  paternity,
one  finds  oneself  engaged  in  a  new  problem  which  is  no
longer that of human rights in the habitual sense (subjective),
but that of the rooting in a lineage or tradition’.

This method is interesting but it is faced, in turn, with

insurmountable difficulties. First of all, it squarely contradicts
the  doctrine  according  to  which  human  rights  are
fundamentally  individual  rights,  the  source  of  these  rights
being  the  individual  considered  in  himself,  not  according  to
his  history,  his  associations  or  his  genealogy.  Now,  from  the
mere  belonging  to  the  species,  it  is  evidently  easier  to  derive
collective rights than individual rights. To this contradiction is
added another, insofar as fraternity is defined above all not as
a right, but as a duty that is only apprehended in a normative
mode  of  the  relationship  to  others:  to  say  that  all  men  are
brothers  only  means  that  they  should  all  consider  themselves
as such.

The ideological bible of human rights stipulates explicitly

that the rights of which it speaks are those of man in himself,
that  is  to  say,  of  a  man  divested  of  all  his  associations.  From
this it is deduced that the moral status (rights) can never be the
function  of  membership  in  a  group.  Now,  humanity  indeed
constitutes a group. The question is then of knowing why one
recognises  in  this  group  a  moral  value  that  one  denies  to
infraspecific  examples,  and  why  one  affirms  that  all
associations should be held as invalid even while considering

one,  the  membership  in  humanity,  as  decisive.  Jenny
Teichmann, who is one of the authors who seek to base such
rights  on  membership  in  the  human  species,  writes  that  ‘it  is
natural  for  gregarious  beings  to  prefer  the  members  of  their
own  species,  and  humans  are  not  an  exception  to  this
rule’.

But would why this preference, legitimate at the

level  of  the  species,  not  be  so  at  other  levels?  If  the  moral
agents  are  allowed  to  concede  a  preferential  treatment  on  the
basis  of  the  relative  proximity  created  by  a  common
association, or by the particular type of relations which result
from  it,  why  could  this  attitude  not  be  generalised?  One  can
certainly  reply  that  the  membership  in  the  species  takes
precedence  over  the  others  because  it  is  the  largest,  that  it
encompasses all the others. That does not explain why all the
possible associations should be delegitimised in favour of that
which outclasses them, nor why that which is true at one level
should cease to be so at another.

The biological definition of man as a member of the human

species  is,  besides,  just  as  conventional  or  arbitrary  as  the
others:  it  rests  on  the  sole  criterion  of  specific  interfecundity.
However,  the  evolution  of  the  legislation  on  abortion  has  led
one  to  understand  that  an  embryo  is  a  human  being  only
potentially  and  not  in  act.  The  underlying  idea  is  that  the
definition of man by biological factors alone does not suffice.
One therefore tried to go beyond that, by emphasising that it is
not  only  because  they  belong  to  another  species  that  men  are
distinguished  from  the  rest  of  living  beings,  but  also  and
above  all  by  an  entire  collection  of  capacities  and

characteristics  that  are  typical  of  them.  The  inconvenience  is
that,  whatever  the  capacity  or  characteristic  retained,  it  is
improbable  that  it  is  found  equally  present  in  everyone.  To
define, for example, membership in the human species by the
self-consciousness  or  the  capacity  of  positing  oneself  as  a
subject of rights, immediately poses the problem of the status
of  children  at  a  young  age,  of  senile  old  people  and  severely
handicapped people.

It is precisely this double contradiction that those who fight

for  ‘animal  rights’  have  not  failed  to  exploit,  and  even  to  the
point  of  attempting  to  grant  human  rights  to  the  great  apes.
Denouncing  as  ‘speciesist’  the  doctrine  according  to  which
only  humans  should  be  recognised  as  possessors  of  rights,
they  consider  that  there  is  nothing  moral  in  attributing  a
particular  moral  status  to  living  beings  on  the  basis  of  their
membership in a group alone, in this case the human species.
They affirm on the other hand that the great apes belong to the
‘moral community’ to the extent that they possess, at least in a
rudimentary  state,  characteristics  (self-consciousness,  moral
sense, elementary language, cognitive intelligence) that certain
‘non-paradigmatic’  humans  (the  severely  handicapped,
disabled,  senile,  etc.)  do  not  possess  or  no  longer  possess.  In
other  words,  against  the  partisans  of  the  Classical  theory  of
human  rights,  they  return  the  argument  used  by  the  latter  to
discredit infraspecific memberships.

‘To attribute a special value or special rights to the members

of the human species based on the sole fact that they are
members of it’, writes Elvio Baccarini, ‘is a morally arbitrary

position which cannot be distinguished from sexism, racism or
ethnocentrism’.

‘Are we disposed’, adds Paola Cavalieri,

‘to say that the genetic relationship which the membership in a
race implies justifies according a particular moral status to the
other members of one’s race? The negative response leads
thus to a rejection of the defence of humanism based on
relationship’.

The classical response to this sort of argument, which rest

on the deconstruction of the notion of humanity by recourse
to the idea of biological continuity among the living, is that the
animals can be objects of right (we have duties with regard to
them), but not subjects of right. Another reply consists in
deepening the notion of the human species, a third in pushing
the reasoning ad absurdum: why stop at the great apes and not
attribute the same ‘rights’ to felines, to mammals, to insects, to
paramecia? The discussion can in fact only come to a sudden
end insofar as the problem is posed in terms of ‘rights’.

Pope John Paul II, in the encyclical Evangelium Vitae,

affirms for his part that all men and only men are proprietors
of  rights,  for  they  are  the  only  beings  capable  of  recognising
and  adoring  their  Creator.  This  affirmation,  apart  from  being
based  on  a  belief  that  one  is  not  obliged  to  share,  comes  up
against  the  objection  already  mentioned  above:  according  to
all  evidence,  neither  the  newborn  nor  the  old  afflicted  with
Alzheimer’s  disease,  nor  the  mentally  ill,  are  capable  of
‘recognising and adoring’ God. Certain authors do not, for all
that, consider it less necessary to recognise that the basis of the
ideology  of  human  rights  is  inevitably  religious.  Michael

Perry,  for  example,  writes  that  there  is  no  positive  reason  to
defend  human  rights  if  one  does  not  posit  straightaway  that
human  life  is  ‘sacred’.

This affirmation makes one think

when  it  emanates,  as  it  often  does,  from  a  declared  atheist.
Alain  Renaut  has,  not  without  reason,  mocked  these
theoreticians  who,  after  having  decreed  the  ‘death  of  man’,
nonetheless defend human rights, that is to say the rights of a
being whose disappearance they themselves have proclaimed.
The  spectacle  of  those  who  profess  the  ‘sacred’  character  of
human  rights,  even  while  flattering  themselves  for  having
suppressed  all  forms  of  the  sacred  in  social  life,  is  no  less
comical.

Quite at the other extreme, certain people think, on the

contrary, that the defence of human rights does not need any
metaphysical or moral foundation. For Michael Ignatieff, it is
useless to search for a justification of rights in human nature,
just as it is unnecessary to say that these rights are
‘sacred’.

It is enough to take into account what the

individuals consider in general to be right. William F. Schulz,
executive director of Amnesty International, also assures us
that human rights are nothing else than what men declare to be
rights.

A. J. M. Milne, in a similar manner, tries to define

human rights based on a ‘minimum standard’ determined by
certain moral exigencies proper to all social life.

Rick

Johnstone writes that ‘human rights do not “win” because they
are “true” but because the majority of men have learned that
they are better than others’.

These modest propositions, of

a pragmatic character, are not very convincing. To consider

that rights are nothing else but what men consider to be rights
is  tantamount  to  saying  that  the  rights  are  of  an  essentially
procedural  nature.  The  risk  is  then  great  of  causing  the
definition  of  human  rights  to  fluctuate  according  to  the
subjective opinions of each person. That amounts, at the same
time,  to  transforming  natural  rights  into  vague  ideas  or  into
positive  rights.  Now,  positive  rights  are  still  less  ‘universal’
than natural rights, since it is often in the name of a particular
positive  right  that  the  discussion  of  human  rights  is
challenged.

Guido Calogero indeed considers that the idea of a

foundation of human rights should be abandoned in favour of
one of an argumentative justification of it.

[69]

But he admits

that  this  proposition  is  hardly  satisfying,  for  it  causes  the
‘truth’  of  human  rights  to  depend  on  the  argumentative
capacity  of  interlocutors  alone,  this  being  always  suspended
by new possible arguments. The search for the justification of
human  rights  then  returns  to  the  argumentative  search  for  a
new  intersubjective,  and  therefore  necessarily  provisional,
consensus,  in  a  perspective  which  does  not  fail  to  recall  the
communicative  ethics  of  Jürgen  Habermas.

[70]

Norberto

Bobbio,

finally,

maintains

that

philosophical

argumentative foundation of human rights is quite simply
impossible, and besides useless.

[71]

He justifies this opinion

by  affirming  that  human  rights,  far  from  forming  a  coherent
and precise whole, have historically had a variable content. He
admits  that  a  number  of  these  rights  can  be  mutually
contradictory  and  that  the  theory  of  human  rights  comes  up

against all the aporias of foundationalism,

[72]

for no

consensus will ever be able to establish itself on the initial
postulates. A rather similar point of view has been expressed
by Chaïm Perelman.

Whether one alleges human nature or reason, the dignity of

man  or  his  belonging  to  humanity,  the  difficulty  of
establishing the foundations of human rights thus reveals itself
to be insurmountable. But if human rights are not based upon
truth,  their  scope  is  found  to  be  strongly  limited  as  a
consequence.  They  are  no  more  than  ‘consequences  without
premises’,  as  Spinoza

[74]

would have said. In the final

analysis, the theory comes back to saying that it is preferable
not to suffer oppression, that freedom is better than tyranny,
that it is not good to do bad to people, and that persons should
be considered as persons rather than as objects, all things that
one could not contest. Was such a detour necessary to arrive at
this point?

United Nations Educational, Scientific and Cultural Organization.-

Ed.

Le sentiment d’exister: Ce soi qui ne va pas de soi (Paris: Descartes

et Cie, 2002), p. 453. Certain contributions to the debate opened by
UNESCO were published in English in 1949 (Comments and
Interpretations) with an Introduction by Jacques Maritain. The work
was republished by UNESCO in 1973.

René Cassin (1887-1976) was a French jurist and judge who helped

to draft the Universal Declaration of Human Rights for the UN. A
veteran of the First World War, he afterwards became a pacifist and
was active in the League of Nations, the Consultative Council of

Jewish Organisations, the UN’s Human Rights Commission, and the
European Court of Human Rights.-Ed.

From Statement on the Implementation of Human Rights (New York:

United Nations, 1948).-Ed.

Politique et impolitique (Paris: Sirey, 1987), p. 192.

Ibid., p. 189.

Les droits de l’homme: Origines et aléas d’une idéologie moderne

(Paris: Cerf, 2001), p. 7.

On the late extension of human rights to women cf. notably Xavier

Martin, L’homme des droits de l’homme et sa compagne (Bouère:
Dominique Martin Morin, 2001).

In Louis Favoreu (ed.), Cours constitutionnelles européennes et

droits fondamentaux (Paris: Presses universitaires d’Aix-Marseille,
1982), p. 521.

Hippolyte Taine (1828-1893) was a French historian and literary

critic who was one of the chief influences on the Naturalist school.
He opposed the ideals of the French Revolution, instead stressing the
importance of race and regionalism.

The French Revolution, vol. 1 (New York: Henry Holt, 1878), p.

211.

One, however, does not see clearly how such a right could result

from the purely individual nature of man, given that there could not
be any ‘oppression’ outside an established public society.

Cf. ‘Sur le lieu commun: c’est peut-être vrai en théorie, mains en

pratique cela ne vaut point’, in Kant, Œuvres philosophiques, vol. 3
(Paris: Gallimard-Pléiade, 1986), p. 265. (An abridged version of this

essay appears in The Theory of International Relations [London:
Allen & Unwin, 1970], as ‘On the Commonplace: This is Perhaps
True in Theory but in Practice it is Not Valid at All’.-Ed.)

Hans Kelsen (1881-1973) was an Austrian-Jewish jurist and legal

scholar who is considered one of the most important legal
philosophers of the Twentieth century. He was also considered to be
the primary nemesis of Carl Schmitt.-Ed.

The term flatus vocis was coined by the Medieval French

nominalist theologian Roscellinus to describe his contention that
only individuals exist, while terms which claim a universal truth are
merely flatus vocis, or an emission of sound without any specific
meaning, like a grunt.-Ed.

Les droits de l’homme: droits individuels ou droits collectifs?

Actes du Colloque de Strasbourg des 13 et 14 mars 1979 (Paris:
Librairie générale de droit et de jurisprudence, 1980), p. 21.

‘Les tâches de la philosophie politique’, in La Revue du MAUSS,

first quarter 2002, p. 279.

The Treaty of Maastricht (1992) stipulates that the European Union

‘shall  respect  fundamental  rights,  as  guaranteed  by  the  European
Convention  for  the  Protection  of  Human  Rights  and  Fundamental
Freedoms  signed  in  Rome  on  4  November  1950’.  The  Treaty  of
Amsterdam (1997) takes a further step in adding that ‘[t]he Union is
founded  on  the  principles  of  liberty,  democracy,  respect  for  human
rights  and  fundamental  freedoms’  (emphasis  added).  The  European
Community  (and  not  the  Union,  which  does  not  have  a  juridical
character)  had  besides  envisaged  adhering  to  the  European
Convention of Human Rights. But a judgment rendered by the Court
of European Justice on 28 March 1996 concluded that ‘in the present
state  of  community  rights,  the  Community  does  not  have  the

competence  to  adhere  to  the  Convention’.  Such  an  adhesion  would
have  had  as  a  consequence  the  placing  of  community  institutions
under  the  judicial  tutelage  of  the  Convention  —  beginning  with  the
Court of Justice of Luxembourg, which would have found itself once
again in a state of dependence on the Court of Strasbourg. That is the
reason  why  the  European  Union,  adopting  a  substitute  solution,
decided  to  announce  a  list  of  ‘fundamental  rights’  protected  by  the
Community’s  judicial  order.  This  Charter  of  Fundamental  Rights  of
the  European  Union,  adopted  by  the  European  Council  in  2000,
comprises  54  articles  preceded  by  a  preamble.  Its  content  reveals  a
vast  syncretism  of  sources. As  for  its  concrete  value,  it  remains,  at
the moment, rather vague. The question of knowing if the Charter can
be invoked before the national judge has, notably, not been decided.
(The Charter was brought into force with the Treaty of Lisbon, which
took effect on 1 December 2009.-Ed.)

Cf. notably Institut international de philosophie (ed.), Les

fondements des droits de l’homme: Actes des entretiens de l’Aquila,
14-19 septembre 1964 (Florence: Nuova Italia, 1966); and Mauricio
Beuchot, Los derechos humanos y su fundamentación filosófica
(Mexico: Universidad Iberoamericana, 1997).

Marcel Gauchet, art. cit., p. 288.

‘Natural Rights and Human History’, in The National Interest,

Summer

2001,

(available

www.allbusiness.com/government/3583877-1.html).

Ibid., p. 24.

Ibid., p. 30.

Individuals and Their Rights (La Salle, Illinois: Open Court, 1990).

Ayn Rand (1905-1982) was a Russian-American novelist and

philosopher who promoted an extreme form of individualist
capitalism which she termed Objectivism.-Ed.

Hegel’s Philosophy of Mind (Oxford: Oxford University Press,

2007), p. 237.

‘Human Nature and Human Rights’, in The National Interest, New

York, Winter 2000-2001, p. 81. Cf. also Robin Fox, ‘Human Rights
and Foreign Policy’, in The National Interest, New York, Summer
2002, p. 120.

Human Natures: Genes, Cultures, and the Human Prospect

(Washington: Island Press, 2000).

Charles Baudelaire (1821-1867) is regarded as one of the greatest

French poets of the Nineteenth century and was a forerunner of the
Symbolists.-Ed.

The Painter of Modern Life and Other Essays (London: Phaidon

Press, 1995), p. 32.-Ed.

In naturalism, it is maintained that all phenomena can be explained

in terms of the forces of nature, and that there is nothing exterior to
them, hence all supernatural or religious explanations are rejected.-
Ed.

Jeremy Bentham (1748-1842) was an English jurist, social

reformer and Utilitarian philosopher.-Ed.

The Open Society and Its Enemies, 2 vols. (London: Routledge &

Kegan Paul, 1945). Popper considers that taking an example from
nature inevitably leads to holism.

‘Against Natural Rights’, in Policy Review, Winter 1983, pp. 143-

175.

‘Le débat interculturel sur les droits de l’homme’, in L’intégration

républicaine (Paris: Fayard, 1998), p. 252.

Jean-Jacques Rousseau (1712-1778) was a philosopher who taught,

among  other  things,  that  ethics  stem  from  man’s  natural  instincts
rather than being ingrained by society. Rousseau did not see society
as  evil,  however,  believing  that  injustice  only  came  about  with  the
development  of  social  inequality  in  modern  societies.  He  was  very
influential upon the French Revolution.-Ed.

On the Origin of Inequality (Chicago: Regnery, 1949), p. 17.-Ed.

Raymond Aron (1905-1983) was a prominent French-Jewish

political philosopher who served in the Free French forces during the
Second World War. Having a strong aversion to totalitarian systems,
he opposed Marxism and those who were influenced by it, including
his friend Jean-Paul Sartre.-Ed.

‘Pensée sociologique et droits de l’homme’, in Études

sociologiques (Paris: PUF, 1988), p. 229.

Art. cit., p. 288.

James Watson (b. 1936) is an English author of novels for young

children. The quest for human rights is a frequent theme in his
books.-Ed.

Utilitarianism is a philosophical school which has its origins in

Nineteenth century England. There are many schools of
Utilitarianism, but in essence it teaches that the morality of an action
is determined by how likely it is to produce the greatest good for the
greatest number of individuals. John Stuart Mill and Jeremy
Bentham were prominent early exponents.-Ed.

On the critique of human rights by Jeremy Bentham, the founder of

Utilitarianism,  cf.  Jeremy  Waldron  (ed.),   ‘Nonsense  Upon  Stilts’:
Bentham, Burke and Marx on the Rights of Man  (London:  Methuen,
1987);  and  Hugo  Adam  Bedau,  ‘“Anarchical  Fallacies”:  Bentham’s
Attack  on  Human  Rights’,  in  Human  Rights  Quarterly,  February
2000, pp. 261-279.

Groundwork for the Metaphysics of Morals (Orchard Park:

Broadview Press, 2005), p. 156.

Ibid., p. 173.

‘L’empire de la morale’, in Commentaire, Autumn 2001, p. 506.

Related to this is the fact that, like many other adherents of a

deontological  morality  (Ronald  Dworkin,  Bruce  Ackerman,  etc.),
Rawls  surreptitiously  reintroduces  into  his  discourse  a  certain
number of considerations referring, in spite of everything, to human
nature  (particularly  when,  evoking  the  hypothetical  ‘veil  of
ignorance’  which  is  said  to  characterise  the  ‘original  position’,  he
lends man an innate tendency to refuse risk).

Under the influence of Kant or the empiricism of the tabula rasa,

there are numerous authors who have, from these assumptions, quite
simply denied the existence of a human nature. Cf., in the very first
place, the very critical work of Steven Pinker, The  Blank  State:  The
Modern  Denial  of  Human  Nature  (New  York:  Viking  Press,  2002),
which has already given rise in Anglo-Saxon countries to a debate of
the  widest  scope.  Pinker  sees  in  human  nature,  which  he  wishes  to
rehabilitate, a veritable ‘modern taboo’.

Whose Justice? Which Rationality? (Notre Dame: University of

Notre Dame Press, 1988).

Cf., notably, Myres S. McDougal, Harold D. Lasswell and Lung-

chu Chen, Human Rights and World Public Order (New Haven: Yale

University Press, 1980).

‘On the Obsolescence of the Concept of Honour’, in Stanley

Hauerwas and Alasdair MacIntyre (eds.), Revisions (Notre Dame:
University of Notre Dame Press, 1983).

Cf. Alain Goldmann, ‘Les sources bibliques des droits de

l’homme’, in Shmuel Trigano (ed.), Y a-t-il une morale judéo-
chrétienne? (Paris: In Press, 2000), pp. 155-164.

The Mishnah is a collection of debates which were discussed by

ancient rabbis, and comprises part of what is known as the Oral
Torah, since it was initially passed down orally before being
transcribed.-Ed.

Art. cit., p. 505.

‘Dignity is the honourable authority of a person, combined with

attention and honour and worthy respect paid to him’. Cicero, ‘De
Inventione’, in The Orations of Marcus Tullius Cicero (London : H.
G. Bohn, 1856), vol. 4, Book 2, Chapter 55, p. 376.-Ed.

A distant echo of this hierarchy is found in Christian theology

when it distinguishes the ‘perfect dignity’ of Christians from the
‘imperfect dignity’ of the non-baptised.

Cf. Jacques Maritain, Les droits de l’homme (Paris: Desclée de

Brouwer, 1989), pp. 69-72.

We may cite, for example, A. I. Melden, Rights and Persons

(Oxford: Oxford University Press, 1972); and Joel Feinberg, Rights,
Justice, and the Bounds of Liberty (Princeton: Princeton University
Press, 1980).

Cf. on this subject S. S. Rama Rao Pappu, ‘Human Rights and

Human Obligations: An East-West Perspective’, in Philosophy and

Social Action, November/December 1982, p. 20.

Droit, communauté et humanité (Paris: Cerf, 2000), p. 67.

Social Ethics: A Student’s Guide (Oxford: Basil Blackwell, 1996),

p. 44.

‘On Speciesism’, in Synthesis Philosophica, 2000, issue 1-2, p.

107.

‘Les droits de l’home pour les grands singes non humains?’, in Le

Débat,  January/February  2000,  p.  159.  Cf.,  in  the  same  issue,  the
speeches of Luc Ferry, Marie-Angèle Hermitte and Joëlle Proust. Cf.
also Peter Singer, Animal Liberation  (New York:  New York  Review
of Books, 1990); and Paola Cavalieri and Peter Singer, The Great Ape
Project:  Equality  Beyond  Humanity  (New York:  St.  Martin’s  Press,
1994). An  analogous  argument  had  been  maintained  in  the  past,  but
in  a  humorous  manner,  by  Clément  Rosset  in  Lettre  sur  les
chimpanzés (Paris:  Gallimard,  1965).  Princess  Stéphanie  of  Monaco
did  not  hesitate  to  declare,  ‘Animals  are  men  like  the  others’.  A
Universal  Declaration  of  Animal  Rights  was  proclaimed  on  15
October  1978  at  UNESCO.  Its  first  article  affirms  that  ‘All  animals
have  equal  rights  to  exist  within  the  context  of  biological
equilibrium’.

The Idea of Human Rights: Four Inquiries (New York: Oxford

University Press, 1998), pp. 11-41. Cf. also Liam Gearon (ed.),
Human Rights and Religion: A Reader (Brighton: Sussex Academic
Press, 2002).

Human Rights as Politics and Idolatry (Princeton: Princeton

University Press, 2001).

In Our Own Best Interest: How Defending Human Rights Benefit

Us All (New York: Beacon Press, 2002).

Human Rights and Human Diversity: An Essay in the Philosophy of

Human Rights (London: Macmillan, 1986).

‘Liberalism, Absolutism, and Human Rights: Reply to Paul

Gottfried’, in Telos 116, Summer 1999, p. 140.

[69]

‘Il fondamento dei diritti dell’uomo’, in La Cultura, 1964, p. 570.

[70]

For Habermas, the agent is above all constituted by language, thus

by communicative exchange. Reason is made to progress via the
means of a consensus obtained through discussion. Cf. The Theory of
Communicative Action, 2 vols. (Boston: Beacon Press, 1984, 1987).
Habermas proposes to redefine human rights starting with respect for
the subject as the basis of ‘communicative activity’. He denies on the
other hand that human rights are of a moral nature, adding, however,
that ‘what confers on them the appearance of moral rights is not their
content...but the sense of their validity, which surpasses the judicial
system of the United Nations’ (La paix perpétuelle: Le bicentenaire
d’une idée kantienne [Paris: Cerf, 1996], p. 86).

[71]

Per una teoria generale della politica (Turin: Einaudi, 1999), pp.

421-466.

[72]

Foundationalism is an epistemological theory which holds that all

beliefs are founded on the suppositions of what are termed ‘basic
beliefs’. Basic beliefs are said to be derived directly through
experience and thus are self-evident, not relying on other beliefs for
support.-Ed.

Chaïm Perelman (1912-1984) was a Polish-Jewish legal

philosopher  who  lived  most  of  his  life  in  Belgium.  In  his  work  he
attempted  to  navigate  a  middle  road  between  scepticism  and
positivism.  He  is  also  regarded  as  one  of  the  most  important
theoreticians of rhetoric in the Twentieth century.-Ed.

3. HUMAN RIGHTS AND CULTURAL

DIVERSITY

Human rights are only universal if they include the right not to

believe in the dogma of the universality of rights. — Giuliano

Ferrara

The  theory  of  human  rights  is  given  as  a  theory  valid  for  all
time  and  for  all  places,  that  is  to  say,  as  a  universal  theory.
This universality, reputedly inherent in each individual posited
as  a  subject,  represents  in  it  the  standard  applicable  to  all
empirical  reality.  In  such  a  view,  to  say  that  the  rights  are
‘universal’  is  only  another  way  of  saying  that  they  are
absolutely true. At the same time, everybody knows well that
the ideology of human rights is a product of the thought of the
Enlightenment,

and

that the very idea of human rights belongs

to  the  specific  context  of  Western  modernity.  The  question
then arises of knowing if the narrowly circumscribed origin of
this  ideology  does  not  implicitly  contradict  its  pretensions  to
universality.  Since  every  declaration  of  rights  is  historically
dated,  does  not  a  tension,  or  a  contradiction  result  from  it,
between  the  historical  contingency  that  presided  at  its
elaboration and the demand of universality which it intends to
affirm?

It is clear that the theory of rights, with respect to all human

cultures,  represents  the  exception  rather  than  the  rule  —  and
that  it  even  constitutes  exception  within  European  culture,
since it appeared only at a definite moment and relatively late
in  the  history  of  this  culture.  If  the  rights  have  been  ‘there’

always,  present  in  the  very  nature  itself  of  man,  one  may  be
surprised that only a small portion of humanity has perceived
it,  and  that  it  has  taken  it  so  long  to  be  perceived.  How  does
one understand that the universal character of rights appeared
as something ‘evident’ only in a particular society? And how
does one imagine that this society could proclaim its universal
character  without  at  the  same  time  vindicating  its  historical
monopoly? That is to say, without positing itself as superior to
those who have not recognised it?

The notion of universality itself raises problems. When one

speaks  of  the  universality  of  rights,  of  what  type  of
universality  does  one  wish  to  speak?  Of  a  universality  of  a
geographical,  philosophical  or  moral  order?  The  universality
of  rights,  besides,  comes  up  against  this  question,  posed
straightaway  by  Raimundo  Panikkar:  ‘Is  there  any  sense  in
asking  oneself  if  the  conditions  of  universality  are  unified
when  the  question  of  universality  itself  is  far  from  being  a
universal question?’

To say that all men are possessors of the same rights is one

thing.  To  say  that  these  rights  should  be  recognised
everywhere under the form that the ideology of rights gives it
is  another,  quite  different  thing.  That  raises,  in  fact,  the
question  of  knowing  who  has  the  authority  of  imposing  this
point  of  view,  what  is  the  nature  of  this  authority,  and  what
guarantees  the  soundness  of  his  discourse.  In  other  words:
who decides that it should be thus and not otherwise?

All universalism tends towards the neglect or effacement of

differences.  In  its  canonical  formulation,  the  theory  of  rights
itself  seems  little  disposed  to  recognise  cultural  diversity,  and
this  is  the  case  for  two  reasons:  on  the  one  hand  its
fundamental  individualism,  and  the  highly  abstract  character
of the subject whose rights it proclaims, and on the other hand
its  privileged  historical  links  with  Western  culture,  or  at  least
with one of the constituent traditions of this culture. One had a
perfect  illustration  of  that  when  the  French  Revolution
affirmed the necessity of ‘refusing everything to the Jews as a
nation  and  according  everything  to  them  as  individuals’,
which  came  to  link  the  emancipation  of  the  Jews  to  the
disintegration  of  their  communal  links.

Since then, the

discourse of human rights has not ceased to be confronted by
human  diversity  such  as  is  expressed  in  the  plurality  of
political  systems,  of  religious  systems  and  of  cultural  values.
Is  this  discourse  dedicated  to  dissolving  them  or  can  it
subsume them at the risk of dissolving itself? Is it compatible
with the differences or can it only try to make them disappear?

All these questions, which have given rise to a considerable

amount of literature,

end, in the final analysis, in a simple

alternative: that is, one maintains that the constituent concepts
of the ideology of human rights are, in spite of their Western
origin, truly universal concepts. Then one has to demonstrate
this. Or one should give up their universality, which would
ruin the entire system: in fact, if the notion of human rights is
purely Western, then its universalisation at the planetary level
patently represents an imposition from outside, a devious way
of converting and dominating, that is to say a continuation of

the colonial syndrome.

An initial difficulty appears already at the level of

vocabulary.  Up  until  the  Middle  Ages,  one  does  not  find  in
any European language — not more than in Arabic, Hebrew,
Chinese  or  Japanese  —  a  term  designating  a  right  as  the
subjective  attribute  of  the  person,  distinct  in  itself  from  the
judicial  matter  (the  law).  Which  is  the  same  as  saying  that,
until  a  relatively  late  period,  there  did  not  exist  any  word  to
designate  these  rights  considered  as  belonging  to  men  by
virtue of their humanity alone. This fact alone, judges Alasdair
MacIntyre, leads one to doubt their reality.

The very notion of right is not in the least universal. The

Indian  language  has  to  only  approximate  equivalents  to
express it, such as yukta and ucita (appropriate), nyayata (just)
or again dharma (obligation).  In  Chinese,  ‘right’  is  translated
by the juxtaposition of two words, chuan li,  indicating  power
and interest. In Arabic, the word haqq, ‘right’, means, first of
all, truth.

The theory of human rights postulates, besides, the existence

of another universal human nature, independent of epochs and
places,  which  would  be  recognisable  by  means  of  reason.  Of
this  affirmation,  which  does  not  belong  to  it  properly  (and
which  in  itself  is  in  no  way  contestable),  it  gives  a  very
particular  interpretation  implying  a  triple  separation:  between
man  and  other  living  beings  (man  is  the  sole  possessor  of
natural  rights),  between  man  and  society  (the  human  being  is
fundamentally  the  individual,  and  the  social  fact  is  not

pertinent  for  knowing  his  nature),  and  between  man  and  the
cosmic  whole  (human  nature  does  not  owe  anything  to  the
general  order  of  things).  Now,  this  triple  separation  does  not
exist  in  the  vast  majority  of  non-Western  cultures,  including
of  course  those  which  recognise  the  existence  of  a  human
nature.

The problem comes up quite particularly in the case of

individualism.  In  the  majority  of  cultures  —  as  besides,  one
must recall, in the original Western culture — the individual in
himself  is  quite  simply  not  representable.  He  is  never
conceived  as  a  monad,  cut  off  from  what  connects  him  not
only  to  his  immediate  neighbours,  but  to  the  community  of
living beings and to the entire universe. The notions of order,
justice and harmony are not elaborated from him, nor from the
individual place which would be that of man in the world, but
from  the  group,  the  tradition,  and  the  social  relations,  or  the
totality of reality. To speak of the freedom of the individual in
himself  thus  makes  no  sense  in  the  cultures  which  have
remained fundamentally holistic, and which refuse to conceive
of the human being as a self-sufficient atom. In these cultures,
the  notion  of  subjective  rights  is  absent,  whereas  those  of
mutual  obligation  and  reciprocity  are  omnipresent.  The
individual  does  not  have  to  justify  his  rights  but  to  work  to
find  in  the  world,  and  first  of  all  in  the  society  to  which  he
belongs,  the  most  propitious  conditions  for  the  realisation  of
his nature and the excellence of his being.

Asiatic thought, for example, is expressed above all in the

language of duties. The basic moral notion of Chinese thought

is that of the duties which one has towards others, not that of
the rights that one could oppose to them, for ‘the world of
duties is logically anterior to the world of rights’.

In the

Confucian  tradition,  which  cultivates  the  harmony  between
beings  and  nature,  the  individual  could  not  possess  rights
superior  to  the  community  to  which  he  belongs.  Men  are
related  to  each  other  by  the  reciprocity  of  duties  and  mutual
obligation.  The  world  of  duties  is,  besides,  more  extended
than that of rights. While there is a theoretical correspondence
between  each  right  and  a  duty,  it  is  not  true  that  to  each
obligation  there  corresponds  a  right:  we  can  have  obligations
towards  certain  men  from  whom  we  have  nothing  to  expect,
and  also  towards  nature  and  animals,  which  do  not  owe  us
anything.

In India, Hinduism represents the universe as a space where

the  beings  traverse  cycles  of  many  forms  of  existence.  In
Taoism,  the  tao  of  the  world  is  regarded  as  a  universal  fact
that governs the course of beings and things. In Black Africa,
the  social  relationship  includes  living  beings  as  well  as  the
dead.  In  the  Middle  East,  the  notions  of  respect  and  honour
determine  the  obligations  within  the  extended  family  and  the
clan.

All these facts are hardly reconcilable with the theory

of rights. ‘Human rights are Western values’, writes Sophia
Mappa, ‘which other societies, despite lip service, do not at all
share’.

To posit that what comes first is not the individual but the

group does not at all signify that the individual is ‘enclosed’ in
the group, but rather that he acquires his individuality only in

connection  with  a  social  relationship  which  is  also  a
constituent  of  his  being.  That  does  not  signify  either  that  the
desire  to  escape  despotism,  coercion  or  ill  treatment  does  not
exist  everywhere.  Between  the  individual  and  the  group,
tensions may surge. That fact is indeed universal. But what is
not  at  all  universal  is  the  belief  according  to  which  the  best
means  of  preserving  freedom  is  to  posit,  in  an  abstract
manner,  an  individual  deprived  of  all  his  concrete
characteristics,  disconnected  from  all  his  natural  and  cultural
affiliations.  There  are  conflicts  in  all  cultures,  but  in  the
majority of them, the vision of the world which predominates
is  not  a  conflicting  vision  (the  individual  against  the  group),
but a ‘cosmic’ vision organised according to the order and the
natural harmony of things. Each individual has his role to play
in  the  whole  into  which  he  is  positioned,  and  the  role  of
political power is to ensure as best it can this coexistence and
this harmony, which is the guarantee of eternity. Just as power
is  universal  but  the  forms  of  power  are  not,  the  desire  for
freedom is universal, whereas the ways of responding to it can
vary considerably.

The problem becomes especially acute when the social or

cultural  practices  denounced  in  the  name  of  human  rights  are
not  imposed  practices  but  customary  practices,  evidently
enjoying  widespread  popularity  amidst  given  populations
(which does not mean that they are never criticised by them).
How  can  a  doctrine  founded  on  the  free  disposition  of
individuals by themselves oppose it? If the men should be left
free to do what they want as long as the use of their freedom

does  not  encroach  upon  that  of  the  others,  why  could  not
peoples  of  whom  certain  customs  appear  to  us  shocking  or
condemnable  be  left  free  to  practice  them  as  long  as  they  do
not seek to impose them on others?

The classic example is that of female circumcision, still

practiced today in numerous countries of Black Africa (as well
as in certain Muslim countries). It is quite evidently a question
of  a  harmful  practice,  but  it  is  difficult  to  extract  it  from  an
entire  cultural  and  social  context  in  which  it  is,  on  the
contrary,  considered  as  morally  good  and  socially  necessary:
an  uncircumcised  woman  will  not  be  able  to  get  married  and
will  not  be  able  to  have  children,  which  is  why  the  women
who  are  circumcised  are  the  first  to  have  their  daughters
circumcised.  The  question  arises  of  determining  in  the  name
of  what  one  can  prohibit  a  custom  which  is  not  imposed  on
anybody.  The  only  reasonable  reply  is  that  one  can  only
provoke the people concerned to reflect on its favourableness,
that  is  to  say,  to  encourage  an  internal  critique  of  the
considered  practice.  It  is  those  men  and  women  whom  the
problem  essentially  concerns  who  should  grapple  with
it.

To cite another example, when a woman is stoned in a

Muslim  country  and  that  infuriates  the  defenders  of  human
rights,  one  can  ask  oneself  exactly  what  this  condemnation
relates  to:  to  the  mode  of  execution  (stoning),  to  the  fact  that
adultery should be punished by death (or that it is quite simply
punishable),  or  to  the  death  penalty  itself?  The  first  reason
seems of a mostly emotional sort.

The second can at least

be discussed (whatever feeling one may have on the question,

in the name of what can one prevent the members of a given
culture from considering adultery to be an offense that merits
sanction and from freely evaluating the gravity of this
punishment?). As for the third, it makes of every country that
maintains the death penalty, beginning with the United States,
a violator of human rights.

‘To pretend to attribute a universal validity to human rights

formulated  in  this  way’,  writes  Raimundo  Panikkar,  ‘is  to
postulate  that  the  majority  of  the  peoples  of  the  world  are
engaged,  practically  in  the  same  way  as  the  Western  nations,
in  a  process  of  transition  from  a  more  or  less  mythical
Gemeinschaft

[13]

… to a ‘modernity’ organised in a ‘rational’

and ‘contractual’ manner, such as the industrial Western world
knows it. That is a contestable postulate’.

So much so that

‘to  proclaim  the  concept  of  human  rights  …  could  well  be
shown  to  be  a  Trojan  horse  introduced  secretly  into  the  heart
of  other  civilisations  with  the  aim  of  forcing  them  to  accept
those  modes  of  existence,  thought  and  feeling  for  which
human rights constitute an emergency solution’.

To accept cultural diversity demands a full recognition of

the  Other.  But  how  to  recognise the  Other  if  his  values  and
practices  are  opposed  to tho se that  one  wishes  to  inculcate?
The adherents of the ideology of rights are generally partisans
of ‘pluralism’. But what compatibility is there between human
rights  and the  plurality  of  cultural  systems  and  religious
beliefs?  If the  respect  for  individual  rights  passes through  a
non-respect  for  cultures  and  peoples,  should  one  conclude

from this that all men are equal, but that the cultures that these
equals have created are not equal?

The imposition of human rights represents, quite evidently,

an  acculturation  whose  realisation  risks  bringing  about the
dislocation  or  eradication  of  collective  identities  which  also
play  a  role  in the  constitution  of  individual  identities. The
Classical  idea  according  to  which  human  rights  protect the
individuals  against the  groups  to  which they  belong  and
constitute  a  recourse  with  regard  to the  practices,  laws  and
customs that  characterise these  groups thereby  proves  to  be
doubtful. Do those who denounce such or such a ‘violation of
human  rights’  always  measure  exactly  at  what  point  the
practice that they criticise can be characteristic of the culture in
the midst of which it is observed? Are those who complain of
the violation of their rights ready, for their part, to pay for the
observation  of these  rights  with  the  destruction  of their
culture?  Would  they  not  rather  wish tha t their  rights  be
recognised on the basis of what specifies their culture?

‘Individuals’, writes Paul Piccone, ‘are protected only when

the  essence  of  human  rights  is  already  embedded  in  a
community’s  particular  legal  system  and the  people  really
believe  in them.’

This remark is correct. By definition,

human  rights  can  be  invoked  only  where they  are  already
recognised,  in the  cultures  and  countries  which  have  already
internalised their  principles  — that  is  to  say,  where,
theoretically, one should no longer have any need of invoking
them.  But  if  human  rights  can  only  be  efficacious  where the
principles  on  which they  are  founded  have  already  been

internalised, the  dislocation  of  cultures  provoked  by their
brutal  importation  goes  directly  against the  objective  being
pursued. ‘The paradox of human rights’, adds Piccone, ‘is that
their implementation implies the erosion and destruction of the
conditions  (traditions  and  customs)  without

which their

implementation becomes precisely impossible’.

It  was  to  try  to  reconcile the  ideology  of  rights  with  cultural
diversity tha t the  notion  of the  rights  of  peoples  to  self-
determination was elaborated. This new category of rights was
theorised  in  particular  immediately  after the  Second  World
War,  notably  in  the  context  of the  nationalistic  demands that
were to end in decolonisation, but also under the influence of
ethnological  works  such  as  Claude  Lévi-Strauss’

which,

in reaction to the adherents of social evolutionism (Lewis
Morgan),

denounced the ravages of acculturation and

placed the  accent  on  cultural  specificities  or  on the  need  of
recognising  rights  particular  to  ethnic  minorities.  More
recently, the renewal of identitarian affirmations of all sorts, a
compensatory reaction during the decline of national identities
and the  growing  sclerosis  of  nation-states  has  set this  subject
once  again  as the  order  of the  day.  For  Lelio  Basso,

great defender of the rights of peoples to self-determination,
the true ‘subjects of history are the peoples, who are equally
the subjects of right’.

A Universal Declaration of the Rights of Peoples was

adopted in Algeria on 4 July 1976, the anniversary of the

bicentenary  of the American  Declaration  of  Independence.  It
stipulates that ‘every people has the right to respect its national
and cultural identity’ (Article 2),  that every people ‘determine
its political status in total freedom’ (Article 5),  that it possesses
‘an exclusive right to its riches and natural resources’ (Article
8), that  it  has the  ‘right  to  give  itself the  economic  and  social
system  of  its  choice’  (Article  11),  the  ‘right  to  speak  its
language, to preserve and to develop its culture’ (Article 13),
as well as ‘the right not to see a culture imposed on it which is
alien to it’.

The enumeration of these rights alone, which for the most

part  have  remained  a  dead  letter,  suffices  to  show  to  what
point their  harmonisation  with  the  Classical theory  of  human
rights  is  problematic. The  right  to  maintain  a  collective
identity, for example, can antagonise certain individual rights.
The  right  to  collective  security  can  also  bring  about  severe
limitations  of  individual  freedoms.  In  a  more  general  way,
writes Norbert Rouland, ‘it is certain that the notion of human
rights  has the  effect  of  blocking the  recognition  of the
collective  rights  of  ethnic  groups’.

As for the rights of

peoples to organise themselves, which has served as the basis
of decolonisation, it contradicts straightaway the right to
interference with a ‘humanitarian’ objective.

The optimists think that the individual rights and collective

rights  are  spontaneously  harmonised  because they  are
complementary, although opinions differ on the  hierarchy that
is  imposed  between the  former  and the  latter.  Edmond  Jouve
thus assures us that ‘human rights and the rights of peoples to

self-determination cannot contradict each other’.

Others,

more  numerous,  stress  undeniable  contradictions,  but  draw
opposite conclusions from them. ‘Many of them have come to
thi n k tha t the  notion  of the  rights  of  peoples  to  self-
determination  was  only  an  abstraction  destined  to  justify the
replacement  of  one  oppression  by  another  and that  only the
rights  of  individuals  counted’,  observes  Léo  Matarasso.
‘Others,  on the  contrary,  consider that  human  rights  are  only
invoked as an ideological alibi to justify actions prejudicial to
the rights of peoples to self-determination’.

One finds the same diversity of opinions with regard to the

‘universal’,  or,  on  the  contrary,  strictly  Western,  character  of
human  rights.  Following Alain  Renaut,  who  affirms  that  ‘the
reference  to  universal  values  does  not  in  no  way  implies
contempt for the individual’,

a majority of the partisans of

the  ideology  of  rights  continue  to  forcefully  maintain  its
universality. ‘Human rights’, declares John Rawls, ‘are not the
consequence  of  a  particular  philosophy,  nor  of  one  way
among others of looking at the world. They are not tied to the
cultural  tradition  of  the  West  alone,  even  if  it  was  within  this
tradition that they were formulated for the first time. They just
follow  from  the  definition  of  justice’.

The implicit

postulate here is evidently that there is only one possible
definition of justice. [T]hough it is true that the values implicit
in the Universal Declaration of Human Rights derive from the
Enlightenment tradition, virtually every country in the world
has affirmed them’.

How is it, then, that it is necessary to

have recourse to arms so often in order to impose them?

From such a perspective, it would be in some way by

chance that the  West  had  arrived  earlier  than the  others  at the
‘stage’  where  it  would  have  been  possible  to  explicitly
formulates  an  aspiration  present  everywhere  in  a  latent  way.
This  historical  priority  would  not  confer  on  it  a  particular
moral superiority. The Westerners would be just ‘in advance’,
whereas the  other  cultures  would  be  ‘behind’. That  is the
classical scheme of the ideology of progress.

The discussion of the universality of human rights, in fact,

evokes  very  often  those  ‘ecumenical’  dialogues  where  one
wrongly takes for granted that all the religious beliefs echo, in
different  forms,  common  ‘truths’.  The  reasoning  maintained
to  demonstrate  that  the  rights  are  universal  is  almost  always
the same. It consists of affirming that there exists everywhere
in the world a desire for well-being and freedom, and then of
deriving  a  ground  from  which  to  legitimate  that  discourse  of
rights  which  is  considered  to  be  a  response  to  this
demand.

Now, such a conclusion is perfectly erroneous.

Nobody  has  ever  denied  that  all  men  have  certain  aspirations
in  common,  nor  that  a  consensus  may  be  established  to
consider  at  least  certain  things  as  intrinsically  good  or
intrinsically  bad.  Everywhere  in  the  world  men  prefer  to  be
healthy  rather  than  ill,  free  rather  than  restricted,  everywhere
they  hate  to  be  beaten,  tortured,  imprisoned  arbitrarily,
massacred,  etc.  But  from  the  fact  that  certain  conditions  are
human, it does not follow at all that the discourse of rights is
validated, and much less that it is universal. In other words, it
is not the universality of the desire to escape coercion that it is

a  question  of  demonstrating,  but  the  universality  of  the
language that one expects to use to respond to this desire. The
two levels cannot be confused. And the second demonstration
has  still  not  been  achieved.  The  way  in  which  the  different
values  are  combined  among  themselves  is,  besides,  rarely
abstract  in  the  majority  of  cultures,  for  the  simple  reason  that
each  of  these  values  receives  a  different  complexion  within
each culture. As Charles Taylor has emphasised several times,
to  say  that  a  value  is  good  is  the  same,  at  first,  as  saying  that
that  culture  in  which  this  value  is  favoured  itself  deserves  to
be  considered  good.  As  for  reason,  which  is  far  from  being
axiologically  neutral,  every  attempt  at  associating  it  with  any
value,  even  one  which  is  decreed  to  be  ‘universal’,  ties  it
inexorably  to  the  particular  culture  where  this  value  is
honoured.

To the question, ‘Is the concept of human rights a universal

concept?’,  Raimundo  Panikkar  responds  thus  with  clarity:
‘The  reply  is  quite  simply  no,  and  that  for  three  reasons. A)
No  concept  is  universal  in  itself.  Each  concept  is  valid  in  the
first  place  where  it  has  been  conceived.  If  we  wish  to  extend
its validity beyond the limits of its proper context, we should
justify  this  extrapolation...  Besides,  every  concept  tends  to
univocity.

To accept the possibility of universal concepts

would imply a strictly rationalist conception of truth. But even
if  this  position  corresponded  to  the  theoretical  truth,  the
existence  of  universal  concepts  would  not  result  from  it,  on
account  of  the  plurality  of  the  universe  of  discourse  which
mankind  de  facto  presents...  B)  Amidst  the  vast  field  of

Western  culture  itself,  even  the  postulates  that  serve  to  locate
our problem are not universally admitted. C) If one would just
adopt  the  attitude  of  a  transcultural  mind,  the  problem  would
appear  exclusively  Western,  that  is  to  say,  it  is  the  question
itself  that  is  in  question.  The  majority  of  the  postulates  and
other  related  presuppositions  enumerated  above  are  quite
simply absent from other cultures’.

This is the reason why certain authors have resigned

themselves to admitting that human rights are a ‘Western
construct with limited applicability’,

applicable with

difficulty in any case in the cultures whose tradition is alien to
liberal  individualism.  Raymond Aron  had  himself  recognised
it:  ‘Every  declaration  of  rights  would  appear  finally  as  the
idealised  expression  of  the  political  or  social  order  that  a
certain  class  or  a  certain  civilisation  is  forced  to  realise...  By
the  same  token,  one  understands  the  equivocality  of  the
Universal  Declaration  of  Rights  of  1948.  It  borrows  from
Western  civilisation  even  the  practice  of  a  declaration  of
rights,  since  other  civilisations  are  unaware  not  of  collective
norms  or  individual  rights,  but  of  the  theoretical  expression,
claiming to be universal, of the former or of the latter’.

The critique of the universalism of rights in the name of

cultural pluralism is not new. Herder

and Savigny,

Germany, like Henry Sumner Maine

in England, have

shown that legal matters could not be understood without
taking into account the cultural variables. One finds an
analogous critique in Hannah Arendt

when she writes that

‘the paradox of abstract rights is that in deriving the rights

from a displaced humanity, they risk depriving of identity
those who are precisely victims of the deracinations imposed
by modern conflicts’.

On the same grounds, Alasdair MacIntyre addresses three

objections to the ideology of human rights. The first is that the
notion  of  rights,  such  as  this  ideology  posits  it,  is  not  found
everywhere,  which  shows  that  it  is  not  intrinsically  necessary
to social life. The second is that the discussion of rights, even
when  it  professes  to  proclaim  rights  derived  from  an
atemporal  human  nature,  is  narrowly  circumscribed  to  a
determined historical period, which renders the universality of
its discourse hardly credible. The third is that every attempt to
justify  the  belief  in  such  rights  ends  in  failure.  Emphasising
that  one  can  only  have  rights  and  enjoy  them  in  a  type  of
society possessing certain established rules,  MacIntyre  writes:
‘These rules appear only in particular historical periods and in
particular  social  circumstances.  These  are  not  at  all  universal
characteristics  of  the  human  condition’.

He concludes

from this that such rights are, just like sorcerers and unicorns,
only a fiction.

The  theory  of  human  rights,  insofar  as  it  is  posited
straightaway as a universal truth, represents in certain respects
a reaction against relativism. There is a certain paradox there,
since  this  theory  emanates  from  the  same  doctrinal  liberalism
which,  historically,  has  also  legitimised  relativism  by
proclaiming  the  equal  right  of  each  individual  to  pursue  the

ends  that  he  has  independently  chosen.  (The  contradiction
appears  clearly  in  those  who  praise  ‘multiculturalism’  from  a
strictly  relativist  position,  when  they  denounce  at  the  same
time  such  or  such  a  cultural  tradition  as  an  ‘attack  on  human
rights’.)  But  the  ideology  of  human  rights,  if  it  avoids
relativism,  inversely  runs  the  risk  of  falling  into
ethnocentrism.  This  is  what  Hubert  Védrine,  the  former
Minister of Foreign Affairs,

confirmed when he said that

the  bible  of  human  rights  comes  to  consider  ‘that  Western
values  are,  en  masse  and  without  possible  discussion  or
nuance,  universal  and  invariable  values  and  that  every
questioning  on  this  subject,  every  pragmatism  is  a
sacrilege’.

‘To hold as established that, without an explicit recognition

of  human  rights,  life  would  be  chaotic  and  deprived  of
meaning’,  writes  Raimundo  Panikkar  for  his  part,  ‘derives
from the same mentality as maintaining that, without the belief
in  a  sole  God  such  as  is  understood  in  the  Abrahamic
tradition, human life would be dissolved into total anarchy. It
would  suffice  to  push  a  little  further  in  this  direction  to
conclude  that  atheists,  Buddhists  and  animists,  for  example,
must  be  considered  as  the  representations  of  human
aberrations.  In  the  same  vein:  either  human  rights  or
chaos’.

Such a slide is avoidable only with difficulty. As soon as a

doctrine  or  a  culture  believes  that  it  is  the  bearer  of  a
‘universal’  message  it  manifests  an  invincible  propensity  to
travesty  its  particular  values  as  such.  It  then  disqualifies  the

values  of  others,  which  it  perceives  as  deceptive,  irrational,
imperfect  or  quite  simply  outmoded.  With  the  best  of  good
intentions,  since  it  is  convinced  that  it  speaks  in  the  name  of
truth, it professes intolerance. ‘A universalist doctrine evolves
ineluctably  toward  a  model  equivalent  to  the  one-party  state’,
said Lévi-Strauss.

In an epoch when cultural and human diversity is indeed the

last thing about which the economic and market ideology that
dominates the planet is concerned, the ideology of rights thus
surreptitiously  resumes  old  discussions  of  domination  and
acculturation.  Accompanying  the  planetary  extension  of  the
market,  it  provides  it  with  the  ‘humanitarian’  dress  which  it
needs.  It  is  no  longer  in  the  name  of  the  ‘true  faith’,  of
‘civilisation’,  of  ‘progress’,  or  indeed  of  the  ‘White  man’s
burden’

that the West believes that it is justified in

directing the social and cultural practices existing in the world,
but  in  the  name  of  the  morality  incarnated  in  the  law.  The
affirmation  of  the  universality  of  human  rights,  in  this  sense,
does  not  represent  anything  else  but  the  conviction  that
particular  values,  those  of  modern  Western  civilisation,  are
superior  values  which  must  be  imposed  everywhere.  The
discussion of rights permits the West once more to install itself
as the moral judge of humankind.

‘In identifying the defence of human rights and the defence

of Western values’, write René Gallissot and Michel Trebitsch,
‘a  new,  more  insidious  and  more  subtle  ideology,  a  “soft”
ideology  allows  one  to  substitute  for  the  East-West
Manichaeism  born  in  the  Cold  War,  a  North-South

Manichaeism where Western-style freedom hopes to regain its
virginity’.

‘The Western model’, observes, for her part,

Sophia Mappa, ‘…must be imposed on humanity as if it were
endowed  with  a  natural  objectivity  which  would  ensure  it
superiority  over  the  others.  According  to  the  same  idea,  the
diverse  social  systems  of  the  globe  would  be  variants  of  the
Western  system,  whose  specificities  should  disappear  before
the irresistible advance of the latter on the planetary level... In
order  that  the  Western  system   may  win  the  planet,  it  would
[therefore]  be  necessary  that  the  other  societies  consciously
abandon  deeply  rooted  representations  of  the  world,  values,
social practices, cultural institutions and symbols’.

Could it have gone otherwise? One may seriously doubt it.

As  François  Flahaut  writes,  ‘If  the  Western  world  wishes  to
convince  the  planet  of  the  validity  of  human  rights  such  as  it
has conceived them, it should assume the anthropological and
theological  presuppositions  which  support  its  formulations
(and  notably  the  specific  use  of  the  term  “rights”  in  the
expression “human rights”). If, on the other hand, it wishes to
avoid supporting itself on these presuppositions, then it should
recognise  that  the  formulation  that  it  has  given  of  these
“rights” draws from its own tradition and has a universal value
only  to  the  degree  to  which  it  appeals  to  a  moral  sentiment
shared by all men of good will’.

‘In a general way’, said

Raymond  Aron,  ‘one  could  pose  the  following  dilemma:
either  the  rights  attain  a  certain  sort  of  universality  because
they  tolerate,  thanks  to  the  vagueness  of  the  conceptual
formulation, no matter what institution; or they preserve some

precision and lose their value of universality’.

And, to

conclude: ‘The rights called universal merit this qualification
only on the condition of being formulated in a language so
vague that they lose all definite content’.

François de Smet summarises the same dilemma in these

terms: ‘Either we decide on a lax, empty international law that
is  flexible  at  will  since  it  respects  the  conceptions  of  all  the
human  cultures,  and  therefore  probably  ineffective;  or  we
assume  a  position  according  to  which  our  culture,  that  of
individual  rights,  of  the  value  of  the  individual  vis-à-vis  the
collectivity,  is  superior  to  the  others,  a  superiority  which  is
often  affirmed  arbitrarily,  for  we  assume  such  a  moral
predominance thanks to our own premises’.

To contest the universality of the theory of rights does not,

however, mean that it is necessary to approve no matter what
political,  cultural  or  social  practice  for  the  sole  reason  that  it
exists.  To  recognise  the  free  capacity  of  peoples  and  cultures
to give themselves, by and for themselves, laws that they wish
to  adopt,  or  to  conserve  the  customs  and  practices  which  are
theirs,  does  not  automatically  bring  about  their  approval.  The
freedom  of  judgment  remains,  it  is  only  the  conclusion  that
one draws from it that can vary. The misuse that an individual
or a group makes of its freedom leads to the condemnation of
this use, not of this freedom.

It is thus not at all a question of adopting a relativist position

— which is an untenable position — but rather of a pluralist
position. There exists a plurality of cultures and these cultures

respond  differently  to  the  aspirations  that  are  expressed
therein.  Certain  of  these  responses  can  rightly  appear  to  us
contestable. It is perfectly normal to condemn them — and to
refuse  to  adopt  them  ourselves.  One  should  admit  also  that  a
society  can  evolve  in  a  direction  that  we  consider  to  be
preferable only from cultural realities and social practices that
are its own. These replies can also be seen to be contradictory.
One  should  then  recognise  that  there  does  not  exist  any
overarching example from a superior,  all-encompassing  point
of view which would allow us to resolve these contradictions.

Raimundo Panikkar has, besides, shown very well that one

can  find  in  all  cultures  without  difficulty  ‘anthropomorphic
equivalents’  of  the  concept  of  human  rights,  but  that  these
equivalents  —  in  India  the  notion  of  dharma,  in  China  the
notion  of  li  (rite)  —  are  neither  ‘translations’  nor  synonyms,
nor  even  antitheses,  but  only  ways  of  replying  to  an
equivalent need proper to each culture.

When Joseph de Maistre,

in a passage that has often

been cited, says that he has met in his life all sorts of men, but
that he has never seen man himself, he does not deny the
existence of a human nature.

He only affirms tha t there

does  not  exist  any  example  where this  nature  can  be
apprehended  in  a  pure  state,  independently  of  all  particular
context: the fact of belonging to humanity is always mediated
by a culture or a collectivity. It would therefore be an error to
conclude  from this that  human  nature  does  not  exist: tha t the
objective  reality  is  indissociable  from  a  context  or  an
interpretation  does  not  mean that  it  is  reduced  to this  context,

that it is nothing other than this  interpretation.  ‘There  exists  a
r ig h t that  is  natural’,  emphasises  Eric  Weil,  ‘…but  it  is
different everywhere. Different everywhere: it is not the  same
in  a  traditional  community,  in  a  political  organisation  of  a
tyrannical  type,  in the state of a modern society. To conclude
from thi s that  such  a  nature  exists  only  among  us  would  be
absurd, just as absurd as it would be to affirm that the problem
of  a  right that  is  natural  has  been,  can  have  been,  or  should
have been posited everywhere’.

In Fragile humanité,

Myriam Revault d’Allones has

proposed  an  interesting  phenomenology  of  the  human  fact,
not in the sense of a construction of others through the sphere
of  subjectivity,  but  in  a  relational  perspective  which  posits
above  all  the  ‘significance  of  the  human’  as  a  capacity  for
exchanging  experiences.  Humanity,  she  says,  is  not  a
functional  category,  but  a  ‘disposition  to  inhabit  and  to  share
the  world’.

One can draw from this the conclusion that

humanity does not yield itself as a unitary fact but on a basis
of common sharing.

Il Foglio, 23 December 2002.

‘La notion des droits de l’homme est-elle un concept occidental?’, in

Diogène, Paris, October-December 1982, p. 88. This text was
republished in La Revue du MAUSS, Paris, first quarter 1999, pp.
211-235.

Shortly following the French Revolution in 1789, the National

Assembly declared Jews to hold the same rights as French citizens,
making France the first European nation to do so. However, the Jews
were no longer recognised as a distinct community, but rather as just

one of several religions in France who should be subject to the same
laws and authorities as all other citizens. The quotation is from
Stanislas Marie Adélaïde,

comte

Clermont-Tonnerre

(1757-1792),

a French nobleman who became the spokesman for those nobles who
joined  the  Third  Estate  following  the  Revolution.  He  made  this
statement  in  his  ‘Speech  on  Religious  Minorities  and  Questionable
Professions’,  which  he  delivered  in  the  National  Assembly  on  23
December 1789.-Ed.

On the difficult question of knowing how one can reconcile

individual  rights  with  collective  rights  on  the  one  hand  with  the
rights  of  the  peoples  to  self-determination  and  the  respect  of  the
cultural  diversity  of  others  on  the  other,  cf.  notably  Les  droits
culturels en tant que droits de l’homme (Paris: UNESCO, 1970); A. J.
M.  Milne,  Human  Rights  and  Human  Diversity:  An  Essay  in  the
Philosophy  of  Human  Rights  (London:  Macmillan,  1986);  Ludger
Kühnhardt,  Die  Universalität  der  Menschenrechte:  Studie  zur
ideengeschichtlichen  Bestimmung  eines  politisches  Schlüsselbegriffs
(Munich: Günter Olzog, 1987); Alison Dundes Renteln, International
Human  Rights:  Universalism  versus  Relativism  (London-Newbury
Park:  Sage,  1990);  Wolfgang  Schmale  (ed.),   Human  Rights  and
Cultural  Diversity  (Goldbach:  Keip,  1993);  and  Eva  Brems,  Human
Rights:  Universality  and  Diversity  (The  Hague:  Martinus  Nijhoff,
2001). Cf. also Adamantia Pollis and Peter Schwab, ‘Human Rights:
A  Western  Construct  with  Limited Applicability?’,  in A.  Pollis  and
P.  Schwab  (eds.),   Human  Rights:  Cultural  and  Ideological
Perspectives  (New  York:  Praeger,  1980),  pp.  1-18;  and  Axel
Honneth,  ‘Is  Universalism  a  Moral  Trap?  The  Presuppositions  and
Limits  of  a  Politics  of  Human  Rights’,  in  James  Bohman  and
Matthias  Lutz-Bachmann  (eds.),  Perpetual  Peace:  Essays  on  Kant’s
Cosmopolitan  Ideal  (Cambridge,  Massachusetts:  MIT  Press,  1997),
pp. 155-178.

After Virtue: A Study in Moral Theory (Notre Dame: University of

Notre Dame Press, 1981), pp. 69-70.

Cf. Georges H. Bousquet, Précis de droit musulman (Paris: Armand

Colin, 1963).

S. S. Rama Rao Pappu, ‘Human Rights and Human Obligations: An

East-West Perspective’, in Philosophy and Social Action,
November/December 1982, p. 24.

Cf. Chung-Shu Lo, ‘Human Rights in the Chinese Tradition’, in

UNESCO  (ed.),  Human  Rights:  Comments  and  Interpretations  —  A
Symposium (London: Allan Wingate, 1950); John C. H. Wu, ‘Chinese
Legal  and  Political  Philosophy’,  in  Charles  A.  Moore  (ed.),  The
Chinese  Mind  (Honolulu:  University  of  Hawaii  Press,  1967);  and
Joanne  R.  Bauer  and  Daniel A.  Bell,  The  East  Asian  Challenge  for
Human Rights (Cambridge: Cambridge University Press, 1999).

Cf. David Little, John Kelsay and Abulaziz Sachedina, Human

Rights  and  the  Conflicts  of  Culture:  Western  and  Islamic
Perspectives  on  Religious  Liberty  (Columbia:  University  of  South
Carolina  Press,  1988);  and Ann  Elizabeth  Mayer,   Islam  and  Human
Rights:  Tradition  and  Politics,  3rd  rev.  edition  (Boulder:  Westview
Press, 1999).

Planetary Democracy: A Western Dream? (London: IKO, 2001), p.

9. In the Third World, adds Sophia Mappa, the rejection of
individualism illustrates the ‘preference in many societies for
polytheism and polygamy. The ideal, so dear to the West, of a single
god and a unique love is hardly shared elsewhere’ (ibid., p. 18).

One will note that female circumcision is not practised either in the

African population of the West Indies nor among the American
negroes. In the United States, sexual mutilations (circumcision) are
exclusively restricted to men.

The stoning of an adulterous woman is not a specifically Muslim

practice. In the past it was habitually practised in Israel (Leviticus
20:10; Deuteronomy 22:22-24), including during the epoch of Jesus
(John 8:3-6).

German: ‘community’. The German sociologist

Ferdinand Tönnies

first coined the term to designate a group in which the individuals
within it are more concerned with the good of the whole as opposed
to their own welfare, including in terms of values.-Ed.

Art. cit., p. 98.

Ibid., p. 100.

‘Ten Counter-Theses on New Class Ideology: Yet Another Reply to

Rich Johnstone’, in Telos 119, Spring 2001, p. 146.

Ibid., p. 150.

Claude Lévi-Strauss (1908-2009) is regarded as one of the most

important anthropologists of the Twentieth century. In his book  Race
and History (Paris: UNESCO, 1952), p. 12, he wrote, ‘[T]he strength
and  the  weakness  of  the  great  declarations  of  human  rights  has
always been that, in proclaiming an ideal, they  too  often  forget  that
man  grows  to  man’s  estate  surrounded,  not  by  humanity  in  the
abstract,  but  by  a  traditional  culture,  where  even  the  most
revolutionary  changes  leave  whole  sectors  quite  unaltered.  Such
declarations  can  themselves  be  accounted  for  by  the  situation
existing at a particular moment in time and in particular space. Faced
with  the  two  temptations  of  condemning  things  which  are  offensive
to  him  emotionally  or  of  denying  differences  which  are  beyond  his
intellectual grasp, modern man has launched out on countless lines of
philosophical  and  sociological  speculation  in  a  vain  attempt  to
achieve a compromise between these two contradictory poles, and to
account for the diversity of cultures while seeking, at the same time,

to eradicate what still shocks and offends him in that diversity.’-Ed.

Lewis Henry Morgan (1818-1881) was an American lawyer who

also  conducted  research  into  ethnology.  He  became  fascinated  with
the Native Americans and was initiated into the Iroquois tribe. In his
book Systems of Consanguinity and Affinity of the Human Family, he
compared his studies of the Native Americans with the tribal life of
other  cultures,  and  developed  his  theory  of  the  Unity  of  Origin  of
Mankind,  in  which  he  believed  he  had  identified  the  universal
primordial  social  structure  of  humanity.  He  also  came  to  believe  in
the necessity for continual progress in societies in order for them to
survive,  which  he  identified  in  modern  times  with  technological
progress, as described in his Ancient Society. Marx and Engels were
heavily  reliant  on  Morgan’s  work  when  discussing  tribal  societies
and social progress in their own theories.-Ed.

Leilo Basso (1903-1978) was an Italian lawyer and a socialist

politician who opposed the Fascists. During the 1960s he participated
in the Russell Tribunal, founded by the philosopher Bertrand Russell,
to examine American war crimes in Vietnam. During the 1970s he
also investigated abuses by Latin American regimes and established
several

organisations

which

supported

national

liberation

movements.-Ed.

Cited by Edmond Jouve, Le droit des peuples (Paris: PUF, 1986), p.

A ‘Green’ Declaration of Human Rights, patronised by Colonel al-

Qadhafi, was likewise adopted in Libya on 14 May 1977. An African
Charter  of  Human  Rights  and  Peoples’  Rights  was  adopted  on  28
June  1981  at  the  Nairobi  summit  of  the  Organisation  of  African
Unity.  A  Universal  Islamic  Declaration  of  Human  Rights  was
proclaimed some months later, on 19 September 1981, in the offices
of  UNESCO.  It  is  founded  on  the  Qur’an  and  notably  affirms  the

right to religious freedom (Article 13).

‘Anthropologie juridique: aux confins du droit’, in Sciences

humaines, May 1992, p. 33.

The question of the right of peoples to self-determination comes up

against a classical difficulty: the definition of the people in
international law and its legal distinction in relation to the state,
indispensable if one wishes to defend the rights of minorities. Cf. on
this subject Alain Fenet (ed.), Droits de l’homme, droits des peuples
(Paris: PUF, 1982).

Op. cit., p. 108.

Jacques Julliard has gone so far as to write that ‘the rights of

peoples to self-determination has become the principal instrument of
the strangling of human rights’ (Le Tiers-monde et la gauche  [Paris:
Seuil, 1979], p. 38). The right to difference is equally condemned by
a determined partisan of acculturation, Sélim Abou, who, in  Culture
et droits de l’homme (Paris: Hachette-Pluriel, 1992), violently attacks
Lévi-Strauss.  The  same  author  assures  us  that  ‘human  rights  find
their foundation in the rational nature of man, insofar as reason is the
demand  of  freedom  for  oneself  and  for  others  and  that  this  demand
constitutes a natural inalienable right’ (p. 75).

‘Droits de l’homme’, in L’Express, 30 September 1988, p. 55.

Le Monde, 30 November 1993, p. 2.

‘Power, Principles and Human Rights’, in The National Interest,

Summer 2002, p. 117.

Cf. for example Michael J. Perry, ‘Are Human Rights Universal?

The Relativist Challenge and Related Matters’, in Human Rights
Quarterly, August 1997, pp. 461-509.

Univocity is that which speaks with one voice. In philosophy, it

implies a concept, such as goodness, which is the same everywhere,
and varies only in terms of degree.-Ed.

Art. cit., pp. 94-96.

Adamantia Pollis and Peter Schwab, art. cit.

‘Pensée sociologique et droits de l’homme’, in Etudes politiques

(Paris: Gallimard, 1972), p. 232.

Johann Gottfried Herder (1744-1803) was a German philosopher

who emphasised the importance of linguistic and geographical
differences giving rise to unique identities among nations, thus
stressing subjectivity over universality in history.-Ed.

Friedrich Carl von Savigny (1779-1861) was a German jurist who

believed that law is something that can only be derived from the
specific culture and history of a nation, and not something that can be
universally applied to all nations, as was held by the French jurists of
his day.-Ed.

Sir Henry Sumner Maine (1822-1888) was an English jurist and

historian. Initially a student of ancient Roman law, he compared the
Roman  concept  of  the  individual  as  someone  whose  identity  was
bound  to  his  identity  in  specific  traditional  groups  to  the  modern
concept of the autonomous individual. After spending many years in
India, Maine concluded that there is no single system of law that can
be  universally  applied,  and  also  that  democracy  was  not  inherently
superior to other political systems.-Ed.

Hannah Arendt (1906-1975) was a German-Jewish political theorist

who studied with Martin Heidegger. She fled the Nazis and lived for
most of the remainder of her life in the United States, becoming one
of the most influential political philosophers of the Twentieth

century.-Ed.

Op. cit., p. 68.

Ibid., p. 70.

Hubert Védrine (b. 1947) was the Foreign Minister in Prime

Minister Jospin’s Socialist administration between 1997 and 2002.
Védrine is well-known for his opposition to American hegemony and
popularised the term ‘hyperpower’ to describe America’s position in
world affairs.-Ed.

‘Refonder la politique étrangère française’, in Le Monde

diplomatique, December 2000, p. 3.

Art. cit., p. 97.

The View from Afar (New York: Basic Books, 1985), p. 285.

‘I do not adopt without reserve the French ideology of “right of

interference”’, said Hubert Védrine as well. ‘First, because it
resembles too much indeed the “duty of civilisation” of the French
colonialists of the Nineteenth century and the White man’s burden of
Rudyard Kipling’ (art. cit., p. 3).

Les droits de l’homme et le nouvel occidentalisme, special issue of

L’Homme et la société, Paris, 1987, 3-4, p. 7. Cf. also Rino Genovese,
La tribù occidentale (Turin: Bollati Boringhieri, 1995).

Op. cit., pp. 9-10.

Le sentiment d’exister: Ce soi qui ne va pas de soi (Paris: Descartes

et Cie, 2002), pp. 454-455.

Op. cit., p. 228.

Ibid., p. 232.

Les droits de l’homme: Origines et aléas d’une idéologie moderne

(Paris: Cerf, 2001), p. 140.

Joseph de Maistre (1753-1821) was a French Counter-

Enlightenment philosopher who fled the Revolution and lived the
remainder of his life in Italy. He always remained a staunch opponent
of democracy and supported monarchical rule.-Ed.

‘During my life, I have seen Frenchmen, Italians, Russians, and so

on; thanks to Montesquieu, I even know that one can be Persian; but
I must say, as for man, I have never come across him anywhere.’
From Marc A. Goldstein, Social and Political Thought of the French
Revolution, 1788-1797 (New York: Peter Lang, 1997), p. 820.-Ed.

‘Du droit naturel’, in Essais et conférences (Paris: Plon, 1970), p.

193.

Paris: Aubier, 2002.

Ibid., p. 37.

4. BEYOND HUMAN RIGHTS: POLITICS,

FREEDOM, DEMOCRACY

From Augustin Cochin

to Joseph de Maistre, from Edmund

Burke

to Karl Marx, from Hannah Arendt to Michel Villey,

the  majority  of the  critiques  of the  ideology  of  human  rights
have  denounced  its  universalism  and  abstract  egalitarianism.
They have equally called attention to the fact that, in depriving
all  concrete  characteristics  from  man,  whose  rights they
proclaim,

of this

ideology, they have risked ending in

levelling and uniformisation. If one admits that the affirmation
of human rights essentially aims at guaranteeing the autonomy
of individuals, one understands at the same time that there is a
contradiction there.

The abstraction of human rights is what threatens most to

render them inoperative. The principal reason for this is that it
is contradictory to affirm, at the same time, the absolute value
of the individual and the equality of individuals in the sense of
a  fundamental  identity.  If  all  men  are  equal,  if  they  are  all
fundamentally  the  same,  if  they  are  all  ‘men  like  others’,  far
from the unique personality of each of them being able to be
recognised,  they  will  appear,  not  as  irreplaceable,  but  on  the
contrary  as  interchangeable.  Not  being  different  from  one
another  by  their  particular  qualities,  only  their  more  or  less
great number will make a difference. Abstract equivalence, in
other  words,  necessarily  contradicts  the  proclamation  of  the
absolute  individuality  of  the  subjects:  no  man  can  be  at  the
same  time  ‘unique’  and  basically  identical  to  every  other.

Inversely, one cannot affirm the unique value of an individual
even while considering his personal characteristics as
indifferent, that is to say, without specifying what makes him
different from the others. A world where all are equal is not a
world where ‘nothing is worth a life’

but a world where a

life is worth nothing.

This problem had been glimpsed by Alexis de

Tocqueville,

who related the rise in the value of equality to

the risk of uniformisation at the core of social life.

It has

been  repeated  more  recently  by  Hannah  Arendt,  who  shows
that  to  posit  man  as  a  pure  abstraction  is  to  increase  his
vulnerability.  ‘The  conception  of  human  rights,  based  upon
the assumed existence of a human being as such, broke down
at the very moment when those who professed to believe in it
were for the first time confronted with people who had indeed
lost all other qualities and specific relationships — except that
they were still human. The world found nothing sacred in the
abstract nakedness of being human’.

Summarising the thesis of Hannah Arendt, André Clair

underlines  the  ‘relation  between  the  affirmation  of  abstract
universal rights and the failure of human rights in ensuring the
most  elementary  respect  for  human  beings  as  persons.
Precisely what the doctrine of human rights fails to recognise,
with its thesis of abstract equality, is that there are no effective
rights without a recognition of the differences between beings.
That is the point of the thesis: human rights can only be rights
of individuality... Of course, there follows a relativity of rights
linked  to  their  efficiency,  that  of  a  historical  community.  But

much more than that, it is a question of a metaphysical thesis,
that  of  ontological  difference:  the  law  does  not  have  its
principle  in  man,  not  even  in  a  fundamental  universal
subjectivity,  but  it  is  an  element  of  the  world;  it  is  the
ontological  difference,  unrecognised  by  the  affirmation  of
abstract equality, that alone gives its full significance to human
rights,  in  recognising  first  a  superiority  in  a  world  already
constituted  of  meanings...  It  is  not  at  all  a  question  of  an
absolute  right  of  everybody  to  difference,  but  of  recognising
that  only  rights  rooted  in  traditions  and  community
experiences have efficacy’.

It is only too easy to recall here that the same that has

affirmed  the  rights  of  individuals  most  strongly  is  also  that
which, in fact, has put in place the most weighty mechanisms
of  collective  heteronomy.  The  two  phenomena,  one  knows
today,  had  to  go  together,  even  if  that  were  only  because  the
state alone, having rapidly become a welfare state, was able to
attenuate the destructive effects of the rise in individualism on
the social fabric. Now, the intervention of the state in all fields
contradicts  the  autonomy  of  wills  that  is  considered  to  be  the
basis of the responsibility of the subjects of the law.

‘The emancipation of individuals from the primordial

restraint  which  committed  them  to  a  community  which  it  is
claimed  preceded  them  as  regards  its  ordering  principle,  and
which  profited  from  very  effective  hierarchical  links  between
man and man’, observes Marcel Gauchet, ‘far from entailing a
reduction  of  the  role  of  authority,  as  common  sense  would
suggest  through  simple  deduction,  has  constantly  contributed

to  enlarge  it.  The  undeniable  latitude  acquired  by  individual
agents at all levels has not at all prevented, but on the contrary,
has regularly favoured the constitution, above and beyond the
sphere  of  civil  autonomy,  of  an  administrative  apparatus
taking  over  more  and  more  broadly  and  minutely  the
collective  direction...  The  deeper  the  laws  of  men  enter  into
the  definition  of  their  society,  the  more  the  organisational
dominance of the bureaucratic state, under cover of permitting
their  participation  in  it,  robs  them,  in  fact,  of  this  faculty’.

What  remains  then,  today,  of  the  ‘reign  of  human  rights’?  In
contemporary  life,  the  question  of  foundations  is,  for  all
intents and purposes, no longer posed. Our contemporaries no
longer base these rights on human nature, since the time they
have  known  that  no  ‘state  of  nature’  ever  preceded  life  in
society,  and  especially  since  the  time  they  learned  that
‘nature’,  insofar  as  it  has  something  to  tell  us,  goes  in  a  very
different direction from that of the ideology of rights. But, for
all  that,  they  have  not  become  Kantian.  They  seek  rather  to
conserve the notion of ‘dignity’ even while detaching it from
all  notion  of  a  moral  law.  ‘To  respect  the  dignity  of  another
human  being’,  observes  Pierre  Manent,  ‘is  no  longer  to
respect  the  respect  which  he  conserves  in  himself  for  the
moral  law;  it  is  today,  more  and  more,  to  respect  the  choice
that  he  has  made,  whatever  this  choice  may  be,  in  the
realisation of his rights’.

The present tendency, more precisely, consists in converting

all sorts of demands, desires or interests into ‘rights’.
Individuals, in the extreme case, would have the ‘right’ to see

no matter what demand satisfied, for the sole reason that they
can  formulate  them.  Today,  to  claim  rights  is  only  a  way  of
seeking  to  maximise  one’s  interest.  The  future  of  the
consumer of rights thus converges with the economic ideal of
man  solely  preoccupied  with  augmenting  his  utility.  ‘The
Homo  oeconomicus  in  search  of  his  interest’,  remarks  Guy
Roustang,  ‘has  his  homologue  in  the  world  of  politics:  the
individual  who  is  defined  by  his  rights’.

That is why the

citizen has increasingly more difficulty in finding his place in
a  society  that  is  politically  conceived  on  the  model  of  a  self-
regulated  market.  Reduced  to  a  simple  catalogue  of  desires
posed  as  so  many  needs,  rights  thus  continually  proliferate
without any longer encumbering themselves with a true raison
d’être. This inflation of rights corresponds to what Michael J.
Sandel  has  called  the  ‘procedural  republic’,

and to the

consecration of the idol of the ‘dependent individualist’ (Fred
Siegel).

Is one then still in a society which ‘respects human rights’ or

in  a  society  which  has  decided  to  legitimise  all  the  forms  of
desire, to ‘recognise’ all the choices of life, all the contents of
existence, all the preferences and all the orientations, provided
that  these  do  not  interfere  too  much  with  those  of  one’s
neighbours?  Does  recognising  human  rights  lead  to
considering all tendencies as legitimate?

In any case, the banalisation of rights brings about their

devaluation.  ‘This  pluralism  without  limits’,  writes  Simone
Goyard-Fabre,  ‘engenders  a  tragic  dereliction:  a  legal
dereliction,  since  the  concept  of  right  is  dissolved  in  the

uncontrolled  movement  of  demands  without  end;  an
ontological  dereliction,  for  the  fact  that  the  human  being
declines  his  personal  responsibility  in  order  to  gain  the
advantage  of  a  responsibility  claimed  to  be  collective
engenders irresponsibility...; an axiological dereliction, for the
total  permissiveness  which  is  at  the  horizon  of  the  delirious
overproduction of rights contains the beginnings of a passage
to  extremes  where  immoderation  and  excess  bear  forces
similar to those of a nihilist flood’.

Another result, directly related to the affirmation of the

individual and his rights, is the extraordinary rise in power of
the legal sphere, henceforth perceived as capable of regulating
political  life  and  of  pacifying  social  life  by  itself.  Tocqueville
said  that,  in  the  United  States,  there  is  hardly  a  political
question that does not end by turning itself sooner or later into
a  legal  question.  This  situation  has  slowly  extended  to  all  the
Western  countries,  where  the  powers  of  the  judges  do  not
cease  expand  and  where  social  relations  are  increasingly
determined  in  terms  of  rights.  ‘As  a  result,  the  realm  of
politics  becomes  merely  the  terrain  where  individuals  ...
understood  as  rational  agents  in  search  of  self-advantage  —
within  the  constraints  of  morality,  of  course  —  submit  to
procedures  for  adjudicating  between  their  claims  that  they
consider “fair”.’

The problem is that the declarations of rights, to the extent

that they wish to encompass everything, are inevitably vaguer
than the national laws. The difficulty, then, is to translate them
into a positive right, without reducing the consensus of which

they are the object. This is the source of paradox, well raised
by  Pierre  Manent:  ‘In  the  future,  if  one  depends  principally
upon  human  rights  to  render  justice,  the  ‘manner  of  judging’
will be irreparable. Arbitrariness, that is to say precisely what
our regimes wanted to defend themselves against in instituting
the  authority  of  constitutionality,  will  then  go  on  increasing,
and will paradoxically become the work of the judges. Now, a
power which discovers that it can act arbitrarily will not delay
in  using  and  abusing  this  latitude.  It  tends  towards
despotism’.

The international law issued by the Peace of Westphalia

(1648)

is today equally turned upside down by the

ideology  of  human  rights,  which  justifies  the  right  (or  the
duty) of ‘humanitarian interference’, that is to say, preventive
war, formerly seen as nearly identical to a war of aggression.
This  right  of  humanitarian  interference,  which  patently
violates the Charter of the United Nations, has no precedent in
international  law.

It suggests that every state, whatever it

be, can intervene at will in the internal affairs of another state,
whatever  it  be,  under  the  pretext  of  preventing  ‘attacks  on
human rights’. Justifying politico-military intervention, which
decolonisation  had  theoretically  put  to  an  end,  it  permits  a
group of countries or authorities professing to act in the name
of  a  nebulous  ‘international  community’  to  impose  their
viewpoint  everywhere  without  taking  into  account  either
cultural  preferences  or  political  and  social  practices  accepted
or  ratified  democratically.  One  immediately  sees  the  risks  of
deviation related to such a doctrine, which quite simply opens

the gate to wars without end, the jus ad bellum replacing the
jus in bello.

The idea of a justice being exercised beyond one’s borders

can  certainly  seduce.  It  is  necessary  to  see,  however,  that  it
comes  up  against  insurmountable  obstacles.  The  law  cannot,
in  fact,  float  above  politics.  It  can  be  exercised  only  within  a
political  community  or  result  from  the  decision  of  several
political units to ally themselves to one another in a way which
suits  them.  That  means  that,  as  long  as  there  is  no  world
government,  the  right  of  humanitarian  interference  can  only
be a caricature of a right.

All justice needs a political power which serves it at least

with  executive  force.  In  the  absence  of  a  world  government,
the  power  called  to  play  the  role  of  the  planetary  police  can
only be that of armed forces so strong that nobody can resist
them.  As  the  armies  are  always  at  the  service  of  particular
states,  that  therefore  leads  to  sanctioning  the  hegemony  of
superpowers,  of  which  it  would  be  naïve  to  believe  that  they
would  not  seek  to  serve  their  own  interests  first  of  all  by
covering their aggressions with a cloak of morality and justice.
It  follows  from  this  that,  among  those  presumed  guilty,  only
the weak will be able to be punished while the powerful, who
cannot  be  brought  to  punish  themselves,  will  not  be
disturbed.

Now, a justice which is not the same for all

does not deserve this name.

Recalling the saying of

Proudhon,

‘[W]hoever invokes humanity wants to

cheat’,

Carl Schmitt had already remarked tha t ‘[t]he

concept of humanity is an especially useful ideological

instrument of imperialist expansion, and in its ethical-
humanitarian form it is a specific vehicle of economic
imperialism’.

In any event, humanity is not a political

concept. A ‘world politics of human rights’ is, therefore,
equally a contradiction in terms.

The idea that in politics good can only engender good

ignores what Max Weber

called the paradox of

consequences.  Historical  experience  shows tha t the  best
intentions can have catastrophic effects. It also shows that the
right of interference never resolves any problem but tends, on
the  contrary,  to  multiply them,  as  one  has  been  able  to  see  in
Kosovo,  in Afghanistan  or  in  Iraq.  Democracy  and  freedoms
are not imposed from outside, especially in one moment. Their
establishment can only result from a local evolution, not from
a  forced  conversion.  Furthermore, the  political  authorities
attacked  or  crushed  as  a  result  of the  discussion  of  human
rights  do  not  disappear  to the  advantage  of  a  pacified  and
more  just  world,  but  to the  advantage  of  economic  and
financial  institutions,  which  create  social  inequalities  and
tensions,  exercised  still  more  arbitrarily  by  multinational
enterprises  and  financial  markets.  ‘The  ideology  of  human
rights’,  affirms  Alain  Bertho,  ‘calls  less  for the  liberation  of
peoples than  for the  police  of the  states’.

Hardly had the

French Revolution proclaimed human rights than, to render
them more effective, it instituted the Terror.

From 1792 to

1801,  it  was  in the  name  of  ‘freedom’  that  France  was
engaged  in  a  politics  of  occupation,  annexations  and
conquests. The  right  of  humanitarian  interference  is  equally

belligerent. ‘It is not excluded that, just as men make war “for
a better peace”’, wrote Julien Freund, ‘it may happen that one
d a y they may fight in the name of conceptions equally
estimable concerning human rights’.

We are, quite

precisely, there already. Bernard Kouchner

who, not so

long  ago,  flattered  himself that  he  ‘found  himself  always  on
the side of those who receive the bombs and not of those who
thr o w them’,  declares  today,  ‘A  preventive  war  is  a  notion
which  seems  to  me  not  only  just,  but  which  approximates  to
what,  with  others,  we  have  proposed  as  a  duty,  and then  a
right,  of  interference’.

But the right of interference does

not justify preventive war alone. By endowing the  wars that it
provokes  with  a  moral  character,  by  presenting them  as  ‘just
wars’,  it  ends  by  criminalising the  enemy,  in  making  him  a
symbol of Evil: one who makes war in the name of humanity
can only place his adversaries outside humanity. By definition,
‘just war’ is a total war.

One  knows  that  the  doctrine  of  human  rights,  defining  rights
as attributes inherent in human nature, posits the individual as
self-sufficient.  ‘The  basic  rights  in  the  actual  sense’,
emphasises  Carl  Schmitt,  ‘are  essentially  rights  of  the  free
individual  person’.

It is, besides, because human rights

are the attributes of an isolated individual and of a disengaged
subject who is independent in relation to those like him, for he
is considered as one who finds in himself his essential raisons
d’être, rather than such reasons being posited as the antithesis
of duties that would be symmetrical to them. This

individualism was originally so marked that the Declaration of
1789  ignores  the  freedom  of  association,  and  more  generally
all  forms  of  collective  rights,  its  authors  condemning  besides
(the  Le  Chapelier  Law,  the  Allarde  decree)

all the

basically  professional  groupings.  Collective  rights  are
recognised  today,  but  human  rights  are  still  rights  whose
realisation  is  considered,  in  the  final  analysis,  to  concern  the
individual  alone,  even  when  certain  of  these  rights  can  be
realised only collectively.

‘Modern humanism is an abstract subjectivism’, writes Jean-

Louis  Vullierme.  ‘It  imagines  men  as  preconstituted
individuals, substances that are universally bearers of the same
attributes,  apt  to  legitimate  the  same  demands  in  all
circumstances  according  to  formal  rules  deducible  from  a
unique  rationality’.

This individualism or atomism

evidently implies contractualism: in the beginning, as soon as
there  are  only  isolated  individuals,  one  can  explain  the
formation  of  societies  only  by  contract,  a  legal  procedure
characteristic of civil law: before the market, only this can get
round  the  great  difficulty  that  there  is  in  founding  the
legitimacy of a society on the principle of the independence of
the  individual,  that  is  to  say,  on  ‘the  principle  of  the  most
asocial  being  that  there  is’.

However, in the doctrine of

human rights, the social contract does not change the nature of
the  individuals.  The  society  remains  a  simple  sum  of
individual  atoms  with  sovereign  wills,  all  equally  moved  by
the  rational  search  for  their  best  interest.  Each  agent  defines
his objectives by himself, in a voluntary manner, and adheres

to society only on an instrumental basis. In other words, only
the individual really exists, while society or the collectivity is
only an abstraction, an illusion or a superimposed reality.

For theoreticians of rights, politics thus has nothing natural.

In  relation  to  the  state  of  nature,  it  constitutes  an  artificial  or
imposed  superstructure.  This  superstructure,  in  order  to  be
legitimate, must be at the service of the individual and give up
defining  itself  as  an  action  taken  by  a  collective  being:  ‘The
aim  of  every  political  association’,  one  reads  in  Article  2  of
the Declaration of 1789, ‘is the conservation of the natural and
inalienable rights of man’. At the core of society, man is thus
not defined straightaway as a citizen, but first as a member of
the  ‘civil  society’  (or  private  sphere),  the  latter  itself  being
defined  as  the  part  of  society  which  can  rightly  be  subtracted
from  the  political  life  (or  public  sphere).  That  is  indeed  why
the theory of human rights gives priority to the  private  rights
of individuals. As Marcel Gauchet writes, ‘It is not a question
of  any  version  of  human  rights,  but  of  a  version  defined
exactly,  which  consists  which  involves  exploiting  the
inherence  of  the  rights  in  the  individual  against  the
associations of the citizen’.

In the beginning, the theory of human rights seemed to be

raised only against a particular political form — in the case of
despotism.  But,  in  fact,  its  critique  is  deployed  against  every
form  of  politics.  The  key  idea  is  that  of  an  opposition  of
principle,  always  latent,  between  the  individual  and  the
community or collectivity to which he belongs. The individual
would  always  be  threatened  by  what  is  outside  his  individual

being,  in  such  a  way  that  it  is  only  by  affirming  his
prerogatives  as  an  individual  that  he  can  guard  against  this
threat.  According  to  this  view,  neither  the  society,  nor  the
family,  nor  the  public  powers,  nor  the  social  relations,  nor
even  the  culture  are  perceived  as  being  able  to  constitute  a
protection  as  well.  This  is  the  origin  of  the  necessity  of
guaranteeing  to  individual  actions  an  inviolable  and  ‘sacred’
sphere.

It is thus not no exaggeration to say that the proclamation of

these rights assumes, from the start, an anti-political sense. As
Carl Schmitt remarks, it signifies that ‘the liberty sphere of the
individual is unlimited in principle, while the powers of the
state are limited in principle.’

Concomitantly, the theory of

human rights creates a radical novelty: a freedom independent
of  all  participation  in  political  affairs,  a  freedom  of  the
individual  separated  from  the  freedom  of  the  political
community  to  which  he  belongs,  an  idea  which  in Antiquity
would  have  been  considered  ‘absurd,  immoral  and  unworthy
of  a  free  man.’

(Carl Schmitt). Finally, if rights are

unlimited  in  principle,  the  duties  themselves  can  only  be
limited  —  both  because,  being  linked  to  social  life,  they
cannot be the opposite of rights inherent in human nature, and
because  it  would  be  contradictory,  from  the  point  of  view  of
the  theory  of  rights,  to  imagine  unlimited  duties  towards
entities  conceived  as  potentially  menacing  for  the  individual.
In this perspective, certain questions are deliberately left aside,
for  example  the  question  of  knowing  if  and  in  what
circumstances  a  collectivity  can  have  rights  in  relation  to  the

individuals that constitute it. In the best case, every restriction
of rights by a political power can only possess the status of an
exception.

A good illustration of the way in which the affirmation of

the  sovereignty  of  the  individual  necessarily  antagonises  the
political  organisation  of  a  society  is  furnished  by  the  way  in
which  the  French  Revolution  tried  to  reconcile  human  rights
and those of the citizen — a question which, in many respects,
resembles  the  old  problem  of  the  union  of  the  soul  and  the
body.  Article  2  of  the  Declaration  of  1791  affirms  that  the
rights  of  the  citizen  have  as  their  exclusive  aim  the
conservation  of  human  rights.  This  affirmation  is  repeated  in
Article  1  of  the  Declaration  of  1793.  Thereby,  the
Revolutionary  right  aims,  quite  evidently,  to  reconcile  the
subjective  right  and  the  objective  right,  the  natural  right  and
the positive right, to ensure the union of citizenship and one’s
membership  in  humanity.  However,  during  the  Revolution,
‘natural’  man  is  not  really  comprehensible  except  under  the
genre  of  citizen.  One  of  the  reasons  for  this  is  probably  that
the  Revolutionary  power  succeeded  an  already  existing  state
power,  while  the American  declarations  of  rights  aimed,  in  a
totally  different  context,  at  fabricating  a  new  political
entity.

Rousseau, for his part, had already declared that he

was for the primacy of the citizen in a famous page: ‘We must
therefore choose whether we will make a man or a citizen; we
cannot do both.’

The authors of the Revolutionary texts

themselves adhere to a civic-oriented conception of rights
which goes together with a strong legalism, and this tendency

is further reinforced by their desire to define the rights of the
nation  as  a  priority.  In  effect,  the  consecration  of  the
sovereignty  of  the  nation  rapidly  dominated  that  of  the
universal  rights  of  the  individual.  ‘The  nation’,  writes  Mona
Ozouf,  ‘is  not  thought  of  as  constituted  of  free  and  equal
individuals,  but  endowed,  from  the  very  first  days  of  the
Revolution,  with  an  absolute  priority’.

The definition of

man as a natural subject who needs to become the object of a
positive legislation in order to be recognised as a subject of the
law has thus sanctioned the primacy of the rights of the citizen
— which permitted the Revolutionary power to legitimate the
political recruitment of individuals.

Examining the definition of human rights and the rights of

the  citizen  in  the  Declaration  of  1789  from  the  theoretical
angle,  Karl  Marx  remarks  for  his  part  that,  in  liberal  and
bourgeois  law,  the  joint  development  of  these  two  spheres  is
rhetorically possible, but practically contradictory, insofar as it
cuts  man  into  two  and  assigns  to  him,  within  each  sphere,
aims that cannot be reconciled or even united.

Just as he sees very well that behind the right to work there

is  first  the  power  of  capital,  Marx  also  sees  that  with  the
abstract generalisation of ‘man’, whose rights are proclaimed,
the play of private interests is above all affirmed. That is why
he  denounces  the  formalism  of  human  rights  and  their
manipulation to the advantage of the propertied class which is
alone  capable  of  determining,  by  its  laws,  within  what  limits
the  freedom  of  every  person  should  be  exercised.  The  rights
are  considered  as  being  valid  for  all,  but  in  fact  they  are

essentially reserved for the bourgeoisie. ‘Thus none of the so-
called  rights  of  men’,  writes  Marx,  ‘goes  beyond  the  egoistic
man, the man withdrawn into himself, his private interest and
his  private  choice,  and  separated  from  the  community  as  a
member  of  civil  society.’

To affirm that the end of all

political  association  is  the  conservation  of  human  rights,  to
make  the  rights  of  the  citizen  a  ‘simple  means  of  conserving
these professed human rights’ comes down from that moment
to placing the citizen at the service of the selfish man: ‘[M]an
as bourgeois rather than man as citizen is considered to be the
proper and authentic man… Actual man is recognized only in
the form of an egoistic  individual,  authentic  man,  only  in  the
form of abstract citizen.’

Marx’s thesis has been explicitly

criticised  by  Claude  Lefort,  who  affirms  that  it  is,  on  the
contrary, the abstraction of human rights, their ahistorical and
formal character, that constitutes their value and guarantees the
possibility  of  having  recourse  to  them  in  no  matter  what
situation. It is precisely, says Lefort, because human rights are
those of a man without determination that they can correspond
to their definition: ‘Human rights lead the law to a foundation
which,  in  spite  of  its  denomination,  is  shapeless,  exists  as  it
were  within  itself,  and  in  this,  eludes  every  power  which
intends to seize it’.

But Lefort does not explain how such

rights,  which  no  ‘power’  can  seize,  could  be  guaranteed  and
applied outside a political order, itself implying a power. This
poses  the  more  general  problem  of  the  implementation  of  the
rights. Human rights derive in effect from the modern natural
right,  not  from  positive  right.  Now,  as  opposed  to  the  latter,

natural right does not by itself have at its disposal any means
of  restraint.  It  is  a  ‘disarmed’  right,  and  the  modern  natural
right  is  still  more  so  than  the  ancient  one  to  the  extent  that  it
does not recognise the social nature of man. Rights conceived
as inalienable attributes of the subject, that is to say, rights that
every man is justified in demanding that they be respected for
the sole reason that he is a man, do not possess ‘by themselves
and  in  themselves  either  legal  importance  or  significance’
(Simone  Goyard-Fabre).  In  order  that  they  may  acquire  it,
they should be sanctioned by rules of positive law, which can
be conceived only within a society. Only positive law can say,
in fact, whom such rights should benefit, who is harmed by a
failure  to  apply  them  and  in  what,  etc.  In  other  words,
subjective  rights,  posed  as  external  to  all  social  fact,  can
acquire an effective consistency only in a social context. That
is  an  initial  paradox.  Régis  Debray  summarises  it  in  these
terms:  ‘One  who  wishes  to  be  a  mere  individual  to  enjoy  a
fullness  of  freedom  forgets  that  there  are  no  human  rights
without the legal form of the state’.

A second paradox results from the difficulty that there is in

claiming  that  human  rights  can  predominate  over  positive
right in such a way that every political power should begin by
recognising  them,  even  while  admitting  that  the  practical
validity  of  these  rights  depends  on  the  capacity  of  this  same
political  power  to  apply  them.  Bentham  had  already
stigmatised  this  contradiction  of  contractualism,  which
consists  in  basing  the  rights  of  the  citizen  on  human  rights
when  the  latter  can  have  an  effective  existence  only  from  the

former.  ‘On  the  one  hand’,  observes  Julien  Freund,  ‘one
demands  the  respect  of  these  rights  for  the  same  reason  that
one respects the dispositions of positive law, but, on the other,
makes  it  known,  with  more  or  less  perspicacity,  that  the
validity  of  these  rights  should  not  depend  on  ordinary
legislative  examples  since  they  aim  at  universality’.

Still

more  generally,  that  poses  the  question  of  the  relations
between  politics  and  the  law.  The  ideology  of  human  rights,
we have seen, posits the anteriority of natural law in relation to
society  and  draws  the  argument  from  that  to  limit  the
prerogatives of politics. Now the law, being impotent by itself,
always  supposes  something  outside  of  itself  to  exercise  itself.
As Marcel Gauchet writes, ‘the point of view of the law does
not allow one to take account of the context in which the law
may  rule.  It  is  here  that  one  should  pass  to  the  political  point
of view. It is demanded by the extent of the limits to the ideas
of a foundation in law’.

The tension between human rights and those of the citizen,

that is to say of man considered as a member of a particular
political community, appears again in the discussions that have
surrounded the arrival of ‘the rights of the second generation’,
that is to say of collective or social rights.

These rights of the second generation (right to work, right to

education,  right  to  medical  care,  etc.)  are  of  a  completely
different nature than individual rights. Sometimes qualified as
‘equality  rights’  compared  to  ‘freedom  rights’,  as  ‘rights  to’
compared  to  ‘rights  of’,  or  again  of  ‘rights  of  recipience’
compared  to  ‘rights  of  action’,

they represent, above all,

beliefs permitting members of a society to demand or obtain
positive services from the state. These are not so much natural
attributes as attributions that a particular society which has
reached a certain moment in its history thinks to be able to and
be obliged to give its members. Not only do they ‘presuppose
an organised civil society which will be the guarantee of their
efficacy’

but to the extent that they even support

themselves  on  the  notion  of  solidarity,  they  imply  the  social
phenomenon  and  cannot  be  deduced  from  the  pre-political
nature  of  the  individual.  Finally,  contrary  to  the  rights  of  the
first  generation,  which  are  unlimited  in  principle  (one  cannot
restrain  them  without  harming  what  they  are  based  on),  they
are, on the contrary, limited, for every belief vis-à-vis others is
limited by the executive capacities and the means of the others.

While the theory of individual rights tends to limit the power

and the authority of the state, the institution of collective rights
makes  of  the  latter  the  privileged  instrument  of  their
implementation.  The  state  is  no  longer  expected  to  abstain,
restrain  itself  or  disengage  itself,  but,  on  the  contrary,  to
implicate  itself,  to  become  engaged,  indeed  to  establish  itself
as  the  exclusive  provider  of  an  ever-increasing  number  of
services. ‘The recognition of social rights having the character
of  “beliefs”’,  writes  Jean-François  Kervégan,  ‘implies  that
sufficient  power  over  the  members  of  the  city  shall  be
conferred  and  recognised  for  it  to  be  able  to  guarantee  them
the  enjoyment  of  these  rights,  in  spite  of  the  possible
opposition of particular interests among them and of some of
these with regard to measures capable of harming them’.

Such indeed is the reason for the hostility of liberal milieus

to collective rights, which they qualify in the best of cases as
‘fine ideals’,

that is to say as pious wishes without real

justification.  If  certain  of  these  rights  are  reducible  to
individual  cases,  others,  in  fact,  cannot  be  distributed:  they
have  as  debtors  not  individuals  but  collectivities.  The  right  to
speak  one’s  language,  for  example,  is  inseparable  from  the
right  to  the  existence  of  the  group  which  uses  this  language,
and  this  second  right  conditions  the  first.  Now,  liberal
individualism  rejects  the  very  idea  that  a  collectivity  can
imagine itself attributing individual traits, in the case of rights,
and  postulates  that  the  value  of  a  possession  depends  on  its
conformity  with  the  principle  of  the  respect  that  one  owes  to
the  individual  alone.  That  is  why  Hayek

violently

denounces  social  rights,  insofar  as  they  derive  from  a
distributive  justice:  ‘[A]ny  policy  aiming  directly  at  a
substantive  ideal  of  distributive  justice  must  lead  to  the
destruction of the Rule of Law’.

It would therefore be useless to deny, as Claude Lefort

does,

the depth of the ‘generation gap’ separating

individual  rights  from  collective  rights.  Between  the  one  and
the  other  there  is  a  difference  of  kind,  not  a  difference  of
degree. This difference of kind goes well beyond the classical
antinomy  between  equality,  assimilated  to  justice,  and
freedom.

On the one hand, individual rights can cause an

obstruction  to  the  realisation  of  collective  rights,  unless  the
reverse  is  true  (that  is  why  liberals  and  socialists  mutually
accuse  each  other  of  violating  the  former  in  the  name  of  the

latter,  or  the  latter  in  the  name  of  the  former).  On  the  other
hand,  a  number  of  public  or  social  goods  are  not  divisible,
which  means  that  they  have  a  significance  only  in  a  holistic
understanding  of  social  action.  The  institution  of  collective
rights  implies  the  recognition  of  the  importance  of  the  notion
of belonging, and leads to the division of the subjects of right
into groups, which is what the classical theory of human rights
has always refused to do. The liberals draw an argument from
these  with  which  to  criticise  social  rights.  One  could  rightly
draw  the  opposite  conclusion  from  it:  social  rights,  from  the
sole  fact  that  they  are  social,  are  more  credible  than  those
drawn  from  an  abstract  individual  ‘nature’,  especially  when
they  allow  one  to  restore  the  notion  of  distributive  justice  to
honour.

In  public  opinion, the  fight  for  human  rights  is  frequently
presented  as  an  aspect  of the  fight  for  democracy.  ‘The
complete democratisation of Europe’, declared Javier Pérez de
Cuéllar in 1990, then Secretary-General of the United Nations,
‘will  be  a  reaffirmation  of the  universal  character  of the
Declaration  of  Human  Rights’. The  same  opinion  has  been
expressed since then by Francis Fukuyama and by many other
authors.  In this  perspective,  democracy  and  human  rights  are
considered to progress in tandem. The two expressions cannot
contradict each other. They even become almost synonyms.

Regardless, this opinion has not been any less contested on

several occasions. Examining the relation between democracy

and human rights, Julien Freund said that it ‘is not evident’.
Their equation, writes Jean-François Kervégan, is at least
‘problematic’.

Myriam Revault d’Allones adds that it

‘does not go without saying’.

There are several reasons

for this.

A primary reason is that democracy is a political doctrine,

while  human  rights  is  a  legal  and  moral  doctrine,  and  that
these  two  types  of  doctrines  do  not  accord  with  each  other
spontaneously.  As  a  political  regime,  democracy  tends  quite
naturally  to  restrain  that  which  is  not  democratic,  and,  more
generally,  that  which  is  not  political.  The  theory  of  human
rights,  on  the  contrary,  tends  to  restrain  the  prerogatives  of
politics.  But  above  all,  as  one  has  seen  with  regard  to  human
rights  and  the  rights  of  the  citizen,  the  one  and  the  other  do
not have the same subject. The ideology of human rights can
only  recognise  abstract  individuals,  while  democracy  knows
only  citizens.  Now,  even  if  they  use  the  same  legal  rhetoric,
the  rights  of  the  citizen  (equality  before  the  law,  freedom  of
petition,  equal  right  of  suffrage  and  vote,  equal  access  to
public  jobs  according  to  capacity,  etc.)  are  fundamentally
different from human rights. They are not attributes of man as
man,  but  capacities  related,  not  only  to  a  particular  political
regime  (democracy),  but  also,  and  especially,  to  a  specific
membership  (a  given  political  community).  The  theory  of
human rights gives the right to vote indiscriminately to all men
insofar  as  they  are  men  (‘one  man,  one  vote’).  Democracy
gives the right to vote to all the citizens but refuses it to non-
citizens.  ‘The  democratic  rights  of  state  citizenship’,  writes

Carl  Schmitt,  ‘presuppose  the  state  citizen,  the  citoyen,  living
in  the  state,  not  individual  free  persons  in  the  extra-state
condition  of  “freedom”.  This  means  these  democratic  rights
have an essentially political character’.

A democratic regime, on the other hand, draws its

legitimacy  from  the  consent  of  the  people,  the  latter  being
generally expressed by votes. In the final analysis, democracy
is  the  regime  which  sanctions  the  sovereignty  of  the  people.
On  the  contrary,  the  discourse  concerning  human  rights  is
given  straightaway  as  a  moral  certainty,  as  a  universal  truth,
considered  to  impose  itself  everywhere  by  the  fact  of  its
universality  alone.  Its  value  does  not  thus  depend  on  a
democratic ratification. Better still, it can oppose it.

‘The problem of human rights’, observes Revault

d’Allonnes,  ‘arises  from  an  individual  foundation  —  the
problem  of  the  natural  rights  of  the  individual  —  which
inevitably  enters  into  conflict  with  the  requisites  of
sovereignty’.

This tension can assume two aspects. On the

one hand, to the extent to which international law inspired by
the  theory  of  human  rights  —  the  right  of  interference  —
implies  a  limitation  of  the  sovereignty  of  the  state  and  of
peoples, it also implies, in the heart of every democratic state,
a  limitation  of  popular  sovereignty.  On  the  other  hand,  the
conditions  under  which  the  theory  of  human  rights  has  been
enunciated  result  in  the  suffrage  itself  no  longer  being
recognised  as  sovereign  except  insofar  as  it  does  not
contradict  the  postulates  of  this  theory.  From  the  perspective
of  human  rights,  explains  Guy  Haarscher,  ‘the  democratic

principle  can  be  valid  only  within  strict  limits,  which  are
precisely those of the philosophy of human rights: supposing
that  a  single  individual  defends  these  latter  against  a  majority
opinion  determined  to  violate  them,  it  is  this  single  person
who,  from  the  point  of  view  of  the  contractualistic
philosophy,  [will  have]  adopted  the  sole  legitimate
attitude’.

Since democratic votes do not go in the direction of human

rights,  they  are  therefore  immediately  rejected  as  ‘irrational’
and  illegitimate.  The  same  ideology  is  opposed  to  the  people
being  consulted,  for  example  by  way  of  a  referendum,  on
subjects  considered  as  too  ‘sensitive’. A  certain  denunciation
of  ‘populism’  enters  quite  evidently  into  this  context:  when
one  broaches  the  question  of  ‘human  rights’,  the  people  are
too often suspected of thinking badly.

‘The recognition and the proclamation of human rights’,

further  writes  Jean-François  Kervégan,  ‘implies  that
insurmountable  limits  are  posed  to  sovereignty,  whether  it  be
monarchical  or  popular’.

Now, every limitation of

popular  sovereignty  represents  an  attack  against  the  very
foundation  of  democracy.  It  is  equivalent  to  an  obligation
made  to  the  citizens  to  give  up  being  governed  by  anyone
except the leaders whom they have elected. It implies that the
ultimate  authority  to  which  the  citizens  owe  obedience  is  no
longer  that  of  their  elected  leaders,  but  that  of  international
authorities  or  jurisdictions  whose  members,  speaking,  as  it
were,  in  the  name  of  a  revealed  truth,  do  not  have  the  least
democratic legitimacy. Once the popular sovereignty is placed

under certain conditions, it is a clear return to political and
social heteronomy.

It is significant that today, one reproaches authoritarian

governments much less for lacking democratic principles than
for not ‘respecting human rights’. To palliate the political
instability that hinders the planetary expansion of the markets,
the Trilateral Commission,

established in 1973, and whose

two principal theoreticians were Samuel Huntington

and

Zbigniew Brzezinski,

had already expressed the wish to

restrain the field of democratic practices in the countries of the
Third World. ‘To reply to these two demands — restrained
democracy and the survival of capitalism’, writes Edmond
Jouve, ‘an ingredient has been found: the ideology of human
rights’.

The redefinition of democracy as the ‘regime that respects

human rights’ — that is to say, finally, its reduction to liberal
democracy, is thus intellectually untenable.

but it is

politically  very  profitable  since  it  allows  one  to  reject  as
contradictory  every  democratic  decision  going  against  the
ideology  of  human  rights.  Jean-Fabien  Spitz  affirms,
however, that such a method is itself contradictory, for ‘to say
that the rights of individuals depend on reason and on nature,
but  to  wish  to  protect  them  from  discussion  by  all  beings
endowed  with  reason  is  to  destroy  their  rational
foundation’.

(Only a majority vote that would end in the

abolition of democracy can be declared anti-democratic, for
such a decision would contradict the end for which the vote is
only a means.)

‘One cannot strictly say anything about a politics of human

rights’, wrote Claude Lefort, ‘so long as one has not examined
if  these  rights  have  a  really  political  significance’. Already  in
1980,  in  a  historical  article,  Marcel  Gauchet  had  precisely
affirmed  that  ‘human  rights  are  not  politics’.

On these

terms, he defined therein ‘the greatest danger that the return to
human rights hides: falling into the rut and the impasse of an
idea  of  the  individual  against  society,  succumbing  to  the  old
illusion  that  one  can  base  oneself  on  the  individual  and  start
from the individual, from his demands and his rights, to return
to society. As if one could disjoin the search for an individual
autonomy  from  the  effort  towards  a  social  autonomy’.

‘Human rights’, he concluded, ‘are not politics insofar as they
do  not  expose  us  to  the  entirety  of  the  society  in  which  they
are  introduced.  They  can  become  politics  only  on  the
condition  that  one  is  able  to  recognise  and  one  gives  oneself
the  means  to  surmount  the  alienating  dynamism  of  the
individualism

that

they

diffuse

their

natural

counterpart’.

Twenty years later, Gauchet published a new article in

which he resumes and deepens the same subject.

He does

not  limit  himself  to  reaffirming  that  the  ‘politics  of  human
rights’ leads to collective impotence. He shows there also that,
in  wishing  to  assume  such  a  politics,  democracy  undermines
‘the  foundations  on  which  it  rests  and  the  instruments  that  it
needs’.

The ideology of human rights, he explains, isolates the legal

element in societies to the detriment of politics and social

history: ‘We are witnesses to a revenge of rights and,
concomitantly, of an eclipse of politics and of social
history’.

[69]

This ideology argues, besides, in the name of

strictly individual rights. Now, ‘if there is a danger on the
horizon, it is that of the weakening of the collective before the
affirmation of individuals’.

[70]

Every democratic politics

must,  in  effect,  recognise  that  the  society  which  it  governs
exceeds the simple sum of its constituent individuals, for fault
of  which  there  could  not  be  a  general  will.  That  is  why  ‘the
politics of human rights as a democratic politics runs aground
on  the  foundation.  It  runs  aground  in  that  it  contributes  to
produce a society whose global design eludes its members. It
can,  indeed,  enlarge  the  prerogatives  of  the  individual  in
society; the more it succeeds in that, the more the figure of the
whole  weakens  in  its  coherence,  the  less  it  is  intelligible  and
governable…  The  politics  of  human  rights  turns  its  back  and
can  only  turn  its  back  on  the  perspectives  of  an  authentic
government of the collective by itself’.

[71]

Now, as Gauchet clarifies further elsewhere, democracy ‘is

and should be the government of the collectivity by itself in its
whole,  and  not  only  in  its  parts.  It  is  and  should  be  self-
government of the political community as such, without which
the  prerogatives  of  right  of  the  members  and  the  constituents
of  this  community  are  finally  revealed  to  be  illusory.  The
democracy  of  rights  is  a  truncated  democracy  which  loses
sight  of  the  properly  political  dimension  of  democracy;  it
forgets the fact of the political community, a fact at the level of
which  is  determined,  in  the  final  analysis,  the  existence  of

democracy… The installation of the individual subject of right
in the plenitude of his prerogatives brings about the obscuring
of the collective political subject of democracy’.

[72]

‘There are two principal ways of conceiving of a

metapolitical  humanity,  a  humanity  having  surmounted  or
surpassed  its  political  condition’,  notes  Pierre  Manent.  ‘This
can be a humanity organised according to the law, or this can
be  a  humanity  living  according  to  its  morality’.

The

ideology of rights unites the one and the other, and that is why
it  can  only  lack  politics.  But  it  lacks  it  also,  and  especially,
because  it  has  as  its  subject  an  abstract  man,  posited  as  in the
‘state  of  nature’, that  is  to  say,  in the pre-social state. Hannah
Arendt  had  already  noticed  it:  ‘Because  philosophy  and
theology  are  always  concerned  with  man,  because  all their
pronouncements would be correct even if there were only one
or  two  men  or  only  identical  men, they  have  found  no  valid
philosophical answer to the question: what is politics?’

[74]

The notion of the individual on which the entire discourse of

human  rights  is  based  is,  in  fact,  a  remarkably  impoverished
notion, since the only thing that qualifies an individual is that
he  is  an  individual.  (One  can  even  ask  oneself,  in  these
conditions,  if  it  is  reasonable  to  attribute  anything  at  all  to
him.) According to the doctrine of rights, it is by positing man
as an individual that one reaches his essence. In reality, a man
deprived of all his concrete characteristics is not at all a ‘man
in  himself’.  He  is  no  longer  anything,  for  he  has  undergone
the  ‘loss  of  all  human  relationship’.

[75]

‘The mistake of

human rights with regard to historical and political reality’,

writes  Myriam  Revault  d’Allonnes,  ‘reveals,  above  all,  the
impasses  of  a  naturalistic  conception  that  is  inevitably  turned
into  its  opposite.  Testing  it  against  the  facts  —  that  is  to  say,
against the loss of political  qualities  considered  substantial  —
what  is  discovered  is  not the  permanent  substratum  of  a
human  nature,  it  is  a  pure  indetermination  deprived  of
meaning’.

[76]

The first theoreticians of human rights were not wrong to

refer to human nature. But it is the notion that they formed of
it that was inconsistent. One knows today — one has known it
for a long time — that man is a social being, that the existence
of men did not precede their coexistence; in short, that society
is  the  perspective  in  which,  from  its  origins,  the  human
presence  in  the  world  has  been  recorded.  Just  as  there  is  no
spirit  that  is  not  incarnated,  there  is  no  individual  that  is  not
situated  in  a  determined  socio-historical  context.  Membership
in  humanity  is  thus  never  immediate,  but  mediated:  one
belongs  to  it  only  through  the  intermediary  of  a  particular
collectivity  or  a  given  culture.  It  is  impossible  for  man  to
define  himself  simply  as  an  individual  because  he  necessarily
lives in a community, where he is connected to values, norms,
shared  meanings,  and  because  the  totality  of  these  relations,
these  practices  —  in  a  word,  everything  that  constitutes  his
living  environment  and  surrounds  his  being,  is  not
superimposed  but,  on  the  contrary,  constitutive  of  his  self.
Man  needs  a  community  to  live  and  to  live  well.  But  ‘the
famous saying of Aristotle, that man is a political animal, does
not  mean  only that man is naturally made to live in society; it

also means that man naturally asks to lead a political life, and
to

participate

actively

in the

life

of the political

community’.

[77]

‘We call those acts just’, writes Aristotle,

‘that tend to produce and preserve happiness and its
components for the political society.’

[78]

Now, it is simply impossible to think and to organise a

political body strictly in terms of individualism. ‘A society
therefore can no more be decomposed into individuals, than a
geometric surface can be resolved into lines, or a line into
points’, said Auguste Comte.

[79]

‘An individual is an isolated

knot’,  wrote  Raimundo  Panikkar  more  recently,  ‘a  person  is
the entire fabric that is outside this knot, a fragment of the total
fabric  that  constitutes  the  real…  It  is  undeniable  that,  without
the  knots,  the  fabric  would  come  undone;  but  without  the
fabric, the knots would not even exist’.

[80]

He deduces from

this that every political plan implies a certain form of holism.
In holism, society is anterior to the individual, as ‘the whole is
necessarily prior to the part’.

[81]

But the parts encompassed

by  the  whole  are  not  reducible  o  this  whole,  and  it  is  in  this
that  holism  is  distinguished  from  collectivism.  The  essential
difference  is  that,  in  collectivism,  the  social  entities  are
imposed absolutely on the individuals, whereas, in holism, it is
the  capacities  of  the  individuals  that  depend  on  their  social
relations. This dependence is therefore not of a causal nature,
but  constitutive  and  reciprocal.  From  this  perspective,  the
common good is neither the good proper to the whole nor the
simple  sum  of  particular  goods;  it  is  a  good  common  to  the
parts and to the whole.

It is evident from this, if one admits that the defence and

promotion  of  rights  require  as  a  priority  the  affirmation  of
politics,  that,  in  attacking  politics,  in  seeking  unceasingly  to
reduce  its  prerogatives,  the  theory  of  rights  undermines  the
very foundations of its implementation. A man can have rights
only in a political context, in a political mode of life shared in
common,  because  every  right  depends  on  the  socio-historical
conditions in which it is affirmed.

[82]

Just as formal rights are

rights without weight (the right to work is not enough to find
a  job,  and  the  right  to  education  does  not  mean  very  much
when  the  public  powers  do  not  have  the  financial  means  to
ensure  free  instruction),  the  individual  in  himself  cannot  be  a
true  subject  of  right.  The  rights  can  only  be  predicates  of
citizenship.  ‘If  man  attains  humanity  by  becoming  a  citizen’,
observes  Myriam  Revault  d’Allonnes,  ‘that  is  to  say,  by
acquiring  a  political  status  and  if,  reciprocally,  he  loses  his
properly  human  qualities  in  losing  this  same  status,  human
rights  imply  an  exercise  that  is  rooted  in  citizenship’.

[83]

Men,  inversely,  can  acquire  rights  only  in  the  midst  of  a
specific  polity,  in  a  life  context  that  concretely  guarantees  the
power of benefiting from it. Which comes back to saying that,
in  the  final  analysis,  the  rights  affirm  and  express  the
difference between men, never their identity.

[84]

But one should go farther and question the very occasion of

continuing  to  speak  using  the  language  of  rights.  As  the
theory  of  human  rights  is  intrinsically  associated  with  the
liberal  ideology,  every  attempt  to  give  it  a  non-liberal
reformulation is very likely to fail. It would be better to realise

that the rights that one commonly invokes are not so much
rights as duties of the governing, and, as a counterpart,
capacities and freedoms that it is legitimate for the governed to
demand if they are refused them.

It is thus not a question, of course, of abandoning the

defence  of  freedoms  to the  ideology  of  human  rights,  and
much  less  of  criticising the  latter  with  a  view  to  legitimising
despotism.  It  is  a  question,  on the  contrary,  of  showing that
the  necessary  fight  against  all  forms  of  tyranny  and
oppression  is  a  fundamentally  political  question  which,  as
such,  should  be  resolved  politically.  It  is  a  question,  in  other
words,  of  abandoning the  legal  sphere  and the  field  of  moral
philosophy  to  affirm that the  power  of the  political  authority
must be limited, not because the individuals enjoy, by nature,
unlimited  rights,  but  because  a  polity  where  despotism  reigns
is a bad political society; that the legitimacy of the resistance to
oppression does not derive from an innate right, but from the
necessity  for the  political  authority  to  respect the  freedom  of
the  members  of  society;  in  short, that men should be free not
because they  ‘have the  right  to that’,  but  because  a  society
where the  fundamental  freedoms  are  respected  is politically
better  than  —  and,  moreover,  morally  preferable  to  —  a
society where they are not.

That implies returning to citizenship conceived as an active

participation  in  public  life,  and  not  as  a  notion  which  can  be
manipulated  with  a  view  to  obtaining  rights,  the  value  of  a
principle.  ‘The  acceptance  of  the  minimal  requirements  of  a
democratic  political  order  —  the  strict  equality  of  rights  and

duties  of  each  person’,  writes  Jean-François  Kervégan  in  this
context,  ‘forces  one  to  renounce  all  metaphysical,
anthropological  or  even  moral  foundations  of  human  rights,
and  especially  of  those  that  are  fundamental,  in  favour  of  a
strictly  political  foundation,  that  is  to  say,  supported  on  the
sole principle of the civic (and not natural, for nothing is less
egalitarian

than

‘nature’)

equality

the

citizen-

individuals’.

[85]

At the same time, that leads at the same time to rehabilitating

the  notion  of  membership  in  a  political  community,  without
which  freedom,  equality  and  justice  are  only  inoperative
abstractions.  Far  from  enclosing the  individual  or threatening
his  being, this  membership  gives  him,  on the  contrary,  ‘the
possibility  of  being  a  significant  individual’,  as  Revault
d’Allonnes  writes,  who  adds,  ‘To  found  human  rights
“politically”,  one  must think  of  politics  and  citizenship,  not
only  in the secondary perspective of a guarantee of subjective
natural rights, but also as the original condition which founds
the effective exercise of the communal life. But — and the two
things  are  evidently  related  —  one  must  also  review the
question of the individualist foundation of society and think of
individual  uniqueness  in  terms  of uniqueness  of  membership
or  even  of plural  uniqueness.  The  latter  is  not  based  on the
ground of an individual foundation but on that of a relation to
the  common  world.  For,  if the  “right  to  have  rights”  is
inseparable  from  membership  in  an  organised  political
community  —  which,  from this fact, cannot be reduced to an
association of individuals — the irreplaceable uniqueness of a

human being is not related to his self-sufficient foundation but
t o the memberships which make his individuation
possible’.

[86]

Finally, one must abandon the idea that there is necessarily a

contradiction  between  individual  freedom  and  social  life,  and
simultaneously  redefine  freedom  in  a  sense  that  is  in  accord
with  what  Benjamin  Constant

[87]

called ‘the freedom of the

Ancients’,

[88]

and Isaiah Berlin ‘positive freedom’,

[89]

which is indissociable from an active participation in public
life, whereas the freedom of the Moderns, or negative
freedom, consists in a series of rights allowing one to protect
oneself from this obligation.

Freedom is not only a personal power. It needs a social field

to  exercise  itself.  That  is  why  one  could  not  be  satisfied  with
the definition figuring in Article 4 of the Declaration of Rights
of  1789:  ‘Freedom  consists  in  being  able  to  do  anything
which  does  not  harm  others’.  On  the  one  hand,  individual
autonomy and the free expression of capacities and merits are
not  subjective  rights  but  correspond,  on  the  contrary,  to  an
imperious political and social necessity. (Public education, for
example,  is  not  at  all  the  result  of  some  ‘right  to  education’
without  which  it  would  be  free,  but  optional.  What  makes  it
obligatory  is  the  recognition  that  instruction  constitutes  a
social  good.)  On  the  other  hand,  individual  freedom  is  never
accomplished in a society that is not free, which comes back to
saying  that  there  is  no  private  freedom  without  public
freedom.  ‘The  aim  of  the  ancients  was  the  sharing  of  social
power  among  the  citizens  of  the  same  fatherland’,  writes

Benjamin Constant.

[90]

That means that freedom is also, first,

a political problem — and not a problem of ‘rights’. Such a
freedom precedes and conditions justice, instead of being a
result of it.

Let us add that one of the best means of defending freedoms

consists in having recourse to the principle of subsidiarity,

[91]

which delegates to the superior authority only those tasks that
cannot  be  accomplished  at  the  lower  levels  or  the  local  level,
thus permitting one to return to a more rigorous conception of
right:  to  establish  (or  re-establish)  right  is  not  to  attribute
authority to individuals the ‘right’ to obtain something, but to
give  them  what  is  due  to them,  or  to return  to them,
individually and collectively, in a concrete manner, that which
has been unjustly taken away from them by a third party or by
the state.

The historians often see in the English Magna Carta of 15
June 1215

[92]

the first text that ‘constitutionally’ enunciated

human rights. This interpretation is anachronistic. Just like the
Spanish Magna Carta of King Alphonso de Leon

[93]

which

had preceded it in 1188, the Magna Carta is a document that is
limited to politically establishing political freedoms. Carl
Schmitt emphasises that it is ‘considered historically, is only
one of many examples of medieval agreements between prince
and feudal lords’.

[94]

It is, in fact, a question, in the form of a

royal concession, of a pact of public law which guarantees to
the feudal aristocracy a certain number of freedoms and

protects  it  against  eventual  abuses  of  royal  power.  It  is the
same  with  the  Habeas  Corpus  Act  of  1679  (a  guarantee
against  arbitrary  arrests)

[95]

and of the Bill of Rights of

1689,

[96]

about which Schmitt writes, ‘They are, in fact,

contractual  or  statutory  regulations  of the  rights  of  English
barons  or  citizens,  which  in the  course  of  a  gradual
development  certainly  assumed the  character  of  modern
principles, but they do not correspond to the original meaning
of basic rights.’

[97]

Freedom, in any case, has been a European concept since its

origin. Ancient Greece was the first to proclaim its benefits.
But it is especially in the north of Europe that its value seems
to have been celebrated most constantly. Tacitus,

[98]

already,

said  that  he  was  surprised  to  learn  that,  among  the  Germans,
the kings were elected and the power to designate them always
belonged  to  assemblies.  The  Germans,  he  adds,  do  not  know
of  obligatory  tax  and  only  know  voluntary  contributions.
What the Roman historian says of the status of women shows
equally  to  what  degree  the  freedom  of  the  person  was
recognised in the countries of the North since the most ancient
times.

In France, where the monarchy ceased to be elective only

after Louis IX,

[99]

this ideal of freedom was kept alive

throughout the Middle Ages. Describing the feudal regime,
Fustel de Coulanges

[100]

writes, ‘At the top of the hierarchy,

the king was surrounded by his great vassals. Each of these
vassals was himself surrounded by his own feudatories and he
could not pronounce the least judgment without them... The

king  could  neither  make  a  new  law,  nor  modify  the  existing
laws, nor raise a new tax without the consent of the country...
If  one  looks  at  the  institutions  of  this  regime  from  close
quarters,  and  if  one  observes  their  meaning  and  significance,
one  will  see  that  they  were  all  directed  against  despotism.
However great the diversity that seems to reign in this regime,
there  is,  however,  one  thing  that  unites  them:  this  thing  is
obsession with absolute power. I do not think that any regime
better  succeeded  than  that  in  rendering  arbitrary  rule
impossible... Feudalism was an association of free men’.

[101]

The end of the feudal regime marked the beginning of the

disintegration  of  this  system  under  the  influence  of  Roman
authoritarianism and the deadly blows of the centralised state.
Little  by  little,  hereditary  royalty  implemented  a  juridical-
administrative  centralisation  at  the  expense  of  intermediary
bodies  and  regional  assemblies.  While  the  communal
revolution  sanctioned  the  power  of  the  nascent  bourgeoisie,
the  regional  parliaments  ceased  to  be  equal  assemblies  and
became  meetings  of  royal  officers.  Having  become  absolute,
the  monarchy  supported  itself  upon  the  bourgeoisie  to
liquidate the last resistances of the nobility.

But there were also some theoreticians, even in France, who

denounced

centralisation,

juridical-administrative

rationalisation  and  royal  absolutism,  the  mere  imitation  of
divine  absolutism.  This  demand  is  sometimes  made  in  the
name  of  ‘the  fundamental  laws  of  the  kingdom’,  sometimes
by  invoking  the  ancient  Celtic  or  Germanic  freedoms.  The
system

freedom

was

‘found

the

woods’,

Montesquieu

[102]

would say, in order to recall the aristocratic

and  Germanic  origin  of  the  idea  of  freedom.  The  same
argument  was  maintained  from  the  end  of  the  Seventeenth
century  by  the  entire  ‘Germanist’  movement  (Henry  de
Boulainvilliers,  Le  Laboureur,  Louis  Adrien  Le  Page),

[103]

who then strongly opposed the ‘Romanist’ movement (the
Abbé Dubos, the Marquis d’Argentons, Jacob Nicolas
Moreau).

[104]

Following the example of Althusius and the

Monarchomachs,

[105]

great adversaries of the theories of

Jean Bodin,

[106]

its partisans repeated incessantly that, in the

past, the kings never had absolute power. Some, like
Boulainvilliers,

[107]

defended the doctrine of popular

sovereignty and the thesis of an original nation where
property was shared. This doctrine would be repeated later by
Augustin Thierry.

[108]

Another particularly interesting movement is classical

republicanism (or civic humanism),

[109]

whose essential

principles  have  been  recalled  in  the  contemporary  age  by
authors  like  John  G.  A.  Pocock,  Quentin  Skinner  and,  more
recently,  Philip  Pettit.  This  school  of  thought  is  principally
related  to  the  Roman  Republican  tradition  (Sallust

[110]

and

Livy)

[111]

and more distantly to Greece (Polybius

[112]

and

Aristotle), but also to Machiavelli, to the Florentine and
Venetian humanists, to the English Republicans, and thus to
Montesquieu, Rousseau and Jefferson.

[113]

In England, the neo-Roman theory of civil freedom

appeared in the Seventeenth century. Its representatives,
Henry Parker, John Milton, Algernon Sidney and, above all,

James  Harrington,  reveal  a  strictly  political  conception  of
freedom, and defend the thesis of a parliamentary and popular
sovereignty,  which  resulted  in  their  being  violently  attacked
by Thomas Hobbes. The notion of civil liberty is for them tied
to  the  classical  ideal  of  the  civitas  libera  or  ‘free  state’,
reanimated  in the  Italian  Renaissance  by the  defenders  of
republican libertà,  in  particular  Machiavelli  in  his Discourses
on Livy  (1514-1519).  When they speak of ‘natural rights and
freedoms’, it is thus never with regard to the individual but to
what  Milton  and  Harrington  call  ‘common  liberty’,  ‘free
government’  or  ‘commonwealth’.

Celebrating the ‘civic

virtues’, the Neo-Romans at the same time rehabilitate politics
t o the degree where public institutions can contribute to the
exercise

of these virtues (whose first cause resides,

nevertheless,  in the  social  customs,  traditions  and  practices).
Their  principal thesis  is that  man  can  be  truly  free  only  in  a
free  state. They therefore  reject the  thesis  according  to  which
coercive  force  is the  only  one that  would threaten  individual
freedoms,  and  emphasise that  living  collectively  in  a  state  of
dependence  already  constitutes  a  source  and  a  form  of
constraint.  ‘A  free  state’,  writes  Quentin  Skinner,  ‘is  a
community  in  which the  actions  of the  political  body  are
determined  by the will of the totality of its members’.

[114]

such a state, the laws must be applied with the consent of all
the members of the political body, which implies their active
participation in public life at the same time as the rejection of
absolute monarchy as tyranny.

From such a perspective, far from freedom being called

upon  to  manifest  itself  in  a  privileged  manner  in  a  private
sphere  always  threatened  by  political  authority,  being  free
means, first, to be able to take part in decisions whose locus is
the  social  and  political  life,  avoiding  constraint  and  coercion,
and  thus  contributing  to  the  maintenance  of  collective
freedoms.  Freedom  then  becomes  a  form  of  social
relationship: I cannot be free without the other members of my
community  being  so  equally.  That  means  that  there  is  only
shared freedom, and that the rules to which the members of a
political  community  conform  constitute  their  common
possession.  The  law,  besides,  ceases  to  be  the  enemy  of
freedom, for the intervention of the public powers can help in
its  realisation.  The  collectivity  governs  itself,  not  in  terms  of
rights, but thanks to the participation of all.

‘The first distinctive trait of a republican political

philosophy’,  writes  Jean-Fabien  Spitz,  ‘is  the  affirmation
according to which the rights that the citizens possess are not
fixed by a philosophical reason that scrutinises nature, but by
a  common  deliberation  in  which  one  tries  to  eliminate
partialities  by  confronting  them  with  nature  and  to  attain
norms  that  everybody  may  find  legitimate...  The  rule  is  no
longer,  further,  the  expression  of  the  cumulative  interests  of
the  greatest  number,  but  of  a  shared  conviction’.

[115]

The

republic  is  thus  composed  ‘of  citizens  who  address  not  only
the  question  of  the  institutional  dispositions  most  favourable
to  the  advancement  of  their  own  interests,  but  also  the
question  of  the  norms  of  a  legitimate  and  morally  acceptable
collective existence’.

[116]

Jean-Fabien Spitz further clarifies, ‘The republicans ...

refuse  to  conceive  rights  solely  as  instruments  necessary  for
the accomplishment of a collection of essential duties, founded
on nature and imposed from outside on every human will. On
the  contrary,  they  wish  to  conceive  rights  as  the  product  of  a
democratic deliberation bearing on the kind of life we wish to
lead collectively, and on the common principles around which
the  members  of  a  republic  wish  to  unite...  The  republicans
thus consider that there is something profoundly erroneous in
the  idea  of  rights  that  are  not  social,  anterior  to  all  properly
political deliberation: the rights are not qualities attached to the
individuals outside all political society, but qualities which can
only  belong  to  citizens;  these  are  not  natural  “trumps”  with
which  the  individuals  could  cut  the  decisions  of  the
collectivities  of  which  they  are  members,  but  principles  of
existence around which the societies are built’.

[117]

The theory of civic republicanism which has been

progressively  dethroned  in  the  Anglo-Saxon  countries  since
the  Eighteenth  century  by  liberalism  has  sometimes
approached  the  theses  of  the  communitarian  school,  from
which, however, it deviates on certain points (notably in Philip
Pettit).

Extending in many respects the Hegelian critique of Kant,

the communitarian critique of the ideology of rights is rooted
in  an  essential  conception  of  the  good.  The  communitarians
subordinate  that  which  is  right  to  the  respect  for  a  certain
number  of  intrinsic  goods,  constitutive  of  the  good  life,  a
procedure  antithetical  to  the  liberal  conception  of  rights.

Affirming  that  the  discussion  of  human  rights  ignores  not
only  cultural  diversity,  but  also  the  social  basis  of  personal
identity,  they  show  that  the  rights  belonging  to  a  subject
disconnected  from  every  communitarian  relationship,  or  in
any  case,  capable  of  revoking  the  commitments  that  result
from  it,  are  necessarily  empty  of  meaning,  since  it  is,  on  the
contrary, the fact of belonging to a collectivity that constitutes
the field of meaning from which it is possible to have rights: if
there  is  no  common  social  good,  the  rights  accorded  to  the
individuals are only an illusion.

[118]

The majority of the communitarians nevertheless recognise

individual  rights,  but  contest  the  formulation  which  the
liberals  give  to  them. Among  them,  the  critique  of  the  liberal
conception  of  rights  generally  takes  two  paths.  The  first
consists  in  showing  that,  in  according  primacy  to  individual
rights,  liberalism  neglects  the  communitarian  dimension  of
human  life  which  is  indispensable  to  the  constitution  of  the
self  as  well  as  to  the  definition  of  a  good  life.  The  second
resides  in  the  affirmation  that  the  justifications  advanced  to
defend  this  prioritisation  of  individual  rights  rests  on
erroneous  presuppositions  concerning  human  nature.  The
communitarians  also  contest  the  autonomous  character  of  the
theory of rights, and affirm that it should at least be supported
on  a  more  general  theory  of  moral  action  or  of  virtue,  the
latter having as its principal object to question oneself on what
it  is  good  to  be,  and  not  on  what  it  is  right  to  do.

[119]

If one

refers to Ancient thought or to the Medieval tradition, to civic
republicanism or to the theoretical works of the

communitarian  school,  there  is  no  shortage  of  sources,  there
is, in any case, no shortage of sources that  allow  us  to  found
the  necessary  freedom  without  having  recourse  to  liberal
ideology,  and  to  defend  it  in  a  more  coherent  and  assured
manner than the discussion of human rights does. It is beyond
this  discussion  that,  to  repeat  the  fine  formula  of  Pierre
Chaunu,

[120]

‘the capacity to say us authentically, thus to

resist the absolute I’ is affirmed.

Augustin Cochin (1876-1916) was a historian who sought to analyse

the French Revolution from a sociological perspective. He was killed
in action in the First World War.-Ed.

Edmund Burke (1729-1797) was an Irish politician and philosopher

who  sat  in  the  House  of  Commons  as  a  member  of  the  Whig  party.
He  was  opposed  to  democracy  and  the  French  Revolution,  although
he  did  believe  in  the  importance  of  representative  government  and
supported  the  cause  of  the  American  Revolution.  He  was  also
involved  for  many  years  in  addressing  injustices  perpetrated  by  the
British East India Company in India.-Ed.

This is a famous quote from André Malraux’s novel The Conquerors

(Chicago: University of Chicago Press, 1992), p. 155. The full quote
reads, ‘I’ve also learned that a life isn’t worth anything, but nothing
is worth a life.’-Ed.

Alexis De Tocqueville (1805-1859) was a French political thinker

best known for his work, Democracy in America, which was based on
his experiences while travelling in the U.S. Although De Tocqueville
was  a  democrat  who  opposed  the  monarchy  of  his  day,  he  also
opposed  the  socialist  radicals.  In  his  study  of  the  U.S.,  he  praised
America’s  democratic  system,  but  disliked  Americans’  obsession
with money and their contempt for elites, since even though the latter

is what enabled them to do away with the old colonial aristocracy, it
also caused them to disregard the most intelligent members of their
society, coining the term ‘tyranny of the majority’ to describe it.-Ed.

Cf. Democracy in America (New York: Library of America, 2004),

vol. 4, chapter 6, pp. 816-821.

The Origins of Totalitarianism (Orlando: Harcourt Brace

Jovanovich,  1976),  p.  299.  In  this  work,  Hannah  Arendt  ties  her
critique  of  the  theory  of  human  rights  to  a  denunciation  of
totalitarianism,  itself  present  as  social  atomisation  and  forced
equalisation of all individuals.

Droit, communauté et humanité (Paris: Cerf, 2000), pp. 92-93. The

abstract character of the formula is especially marked in French
(droits de l’homme), less in German, which speaks of ‘rights of men’
(Menschenrechte), and still less in English, Spanish or Italian, which
use an adjective instead of a noun (human rights, derechos humanos,
diritti umani).

La démocratie contre elle-même (Paris: Gallimard-Tel, 2002), pp.

20-21.

Démocratie: le risque du marché (Paris: Desclée de Brouwer, 2002),

p. 176.

Sandel first coined this term in his article, ‘The Political Theory of

the Procedural Republic’, Revue de metaphysique et de morale 93,
January/March 1988, p. 61, and in his book Liberalism and the Limits
of Justice (Cambridge: Cambridge University Press, 1982).-Ed.

On the inflation of rights, cf. F. Ost and M. Van de Kerchove, Le

système juridique entre ordre et désordre (Paris: PUF, 1988); and
Stamatios Tzitzis, ‘Droits de l’homme et droit humanitaire’, in Henri
Pallard and Stamatios Tzitzis (eds.), Droits fondamentaux et

spécificités  culturelles  (Paris:  L’Harmattan,  1997),  pp.  41-62.  (Fred
Siegel,  a  senior  fellow  at  the  Progressive  Policy  Institute  and  a
former  advisor  to  Mayor  Rudolph  Giuliani,  discusses  dependent
individualism  in  The  Future  Once  Happened  Here:  New  York,  DC,
LA,  and  the  Fate  of  America’s  Big  Cities   [New  York:  Free  Press,
1997]).

Les principes philosophiques du droit politique moderne (Paris:

PUF, 1997), p. 274.

Chantal Mouffe, The Return of the Political (London: Verso, 1993),

p. 140.

Art. cit., p. 502.

The Thirty Years’ War ended with the Peace of Westphalia in

1648, in which the nations of Europe recognised each others’
territorial integrity. Some historians consider it to have been the first
step in the development of the modern-day system of international
relations.-Ed.

It was nevertheless prepared by the slow evolution of international

law which, at least since the Treaty of Versailles (1919), has moved
increasingly farther away from the ancient jus publicum europaeum.
Already in 1917, the American President Woodrow Wilson had
introduced into international law a discriminatory conception of war
which makes the ‘just war’ the equivalent of a crusade. On this vast
subject, cf. Carl Schmitt, The Nomos of the Earth in the International
Law of the Jus Publicum Europaeum (New York: Telos Press, 2003).

Jus ad bellum, meaning ‘right to wage war’ in Latin, are the

conditions under which it is considered acceptable under
international law for a nation to declare war on another. Jus in bello,
or ‘laws of war’, are the laws which apply in combat once a war is in
progress, such as the Geneva Convention.-Ed.

Cf. Tzvetan Todorov, ‘Les illusions d’une justice universelle’, in

Le  Monde  des  débats,  May  2001,  p.  27.  The  most  revealing  is  that,
when  the  great  powers  judge  that  they,  too,  might  one  day  need  to
submit  to  the  general  law,  they  abruptly  retrace  their  steps.  This  is
how  the  United  States  has  constantly  promoted  the  principle  of
human rights beyond its borders, even while contesting that the same
standards might apply to them. They demanded the appearance of the
Serbian  President  Milošević  before  the  International  Criminal
Tribunal, even while making it known that, for their part, they do not
recognise its jurisdiction. Cf. Stanko Cerovic, ‘Le TPI, instrument de
l’empire  américain’,  in  Le  Monde  des  débats,  May  2001,  p.  26. As
regards  the  right  of  humanitarian  interference,  David  B.  Rivkin,  Jr.
and Lee A. Casey wrote recently that it ‘may prove to be one of the
most  potent  weapons  ever  deployed  against  the  United  States’,  for
‘has the potential to undermine American leadership in the post-Cold
War global system’ (‘The Rocky Shoals of International Law’, in The
National  Interest,  New  York,  Winter  2000-2001,  pp.  36-38).  As  an
alternative,  the  authors  express  the  wish  that  the  United  States
‘actively  work  to  shape  international  law  in  ways  that  both  support
[its] national interests and that are consistent with [its] philosophical
foundations’ (ibid., p. 41).

Pierre-Joseph Proudhon (1809-1865) was a French politician and

philosopher who opposed capitalism and did not believe in state
ownership of property, instead believing that property should belong
to workers’ groups.-Ed.

The Concept of the Political (Chicago: University of Chicago

Press, 2007), p. 54.-Ed.

Ibid., p. 54.

Max Weber (1864-1920) was a German who is considered one of

the founders of sociology. His principal work is The Protestant Ethic

and the Spirit of Capitalism. Weber discusses the idea of the paradox
of consequences in Economy and Society.-Ed.

Contre l’Etat, la politique (Paris: La Dispute, 1999), p. 104.

The Reign of Terror was a period between 1793 and 1794 in France

when the revolutionary National Convention, led by Robespierre,
executed perceived enemies of the French Revolution, including not
just members of the aristocracy, the priesthood and the old regime
but even those who had supported the revolution but who held views
in opposition to the Convention. Thousands of people were sentenced
to death during this period.-Ed.

Politique et impolitique (Paris: Sirey, 1987), p. 198.

Bernard Kouchner (b. 1939) is a French socialist politician with a

history  of  radical  activism  who  served  as  French  Foreign  Minister
from  2007  until  2010.  In  early  2003,  when  the  U.S.-led  war  against
Iraq  was  imminent,  Kouchner  declared  himself  to  be  in  favour  of
removing Saddam Hussein from power, even though he believed that
this  should  be  accomplished  by  the  United  Nations  and  not  by  the
United States acting unilaterally.-Ed.

Le Monde, 17 September 2002.

Constitutional Theory (Durham: Duke University Press, 2008), p.

203.  The  culture  of  rights,  summarises  Charles  Taylor,  is  a  triply
individualist  culture:  ‘[I]t  prizes  autonomy;  it  gives  an  important
place  to  self-exploration,  in  particular  of  feeling;  and  its  visions  of
the  good  life  generally  involve  personal  commitment.  As  a
consequence,  in  its  political  language,  it  formulates  the  immunities
due  people  in  terms  of  subjective  rights.  Because  of  its  egalitarian
bent, it conceives these rights as universal’ (Sources of the Self: The
Making  of  the  Modern  Identity  [Cambridge:  Cambridge  University
Press, 1989], pp. 305).

The Le Chapelier Law and the Allarde decree were passed by the

revolutionary  National  Assembly  in  1791,  following  the  French
Revolution.  The  laws  banned  guilds  as  well  as  forbade  strikes  and
state  intervention  in  the  economy,  proclaiming  free  enterprise  to  be
the sole arbiter of French labour.-Ed.

‘Questions de politique’, in Michel Garcin (ed.), Droit, nature,

histoire: Michel Villey, philosophe du droit (Aix-en-Provence:
Presses universitaires d’Aix-Marseille, 1985), p. 170.

Pierre Manent, Naissance de la politique modern (Paris: Payot,

1977), p. 11.

La religion dans la démocratie: Parcours de la laïcité (Paris:

Gallimard, 1998), p. 81.

Theory of the Constitution, p. 197-198.

Ibid., p. 198.-Ed.

Cf. Marcel Gauchet, La révolution des droits de l’homme (Paris:

Gallimard, 1988); and Stéphane Rials (ed.), La Déclaration des
droits de l’homme et du citoyen (Paris: Hachette, 1989).

Jean Jacques Rousseau: His Educational Theories Selected from

Émile, Julie and Other Writings (Hauppauge: Barron’s Educational
Series, 1964), p. 9.

Preface to Ladan Boroumand, La guerre des principes: Les

assemblées  révolutionnaires  face  aux  droits  de  l’homme  et  à  la
souveraineté  de  la  nation,  mai  1789-juillet  1794  (Paris:  Éditions  de
l’École  des  hautes  études  en  sciences  sociales,  1999),  p.  8.  Cf.  also
Elisabeth  Guibert-Sledziewski,  ‘L’invention  de  l’individu  dans  le
droit  révolutionnaire’,  in  La  Révolution  et  l’ordre  juridique  privé:
Rationalité ou scandale? Actes du colloque d’Orléans (Paris: CNRS-

Université d’Orléans and PUF, 1988), pp. 141-149.

‘On the Jewish Question’, in Writings of the Young Marx on

Philosophy and Society (Indianapolis: Hackett Publishing, 1997), pp.
236-237. From ‘On the Jewish Question’ (1843) to the writings of his
maturity, Marx will never return to this judgment. Thereafter he will
denounce not only human rights as formal rights, but also as rights in
general, letting it be understood in this way that it is not in terms of
right that one should think of politics. Cf. Bertrand Binoche,
Critiques des droits de l’homme (Paris: PUF, 1989), pp. 97-112; and
Georg Lohmann, ‘La critica fatale di Marx ai diritti umani’, in Studi
Perugini, January-June 1998, pp. 187-199.

Ibid., pp. 237, 240.

‘Droits de l’homme et politique’, in L’invention démocratique

(Paris: Fayard, 1981), p. 66.

L’Etat séducteur: Les révolutions médiologiques au pouvoir (Paris:

Gallimard, 1993), p. 161.

Op. cit., p. 191. Freund concludes from this that one cannot even

say of a declaration of human rights that it belongs to natural right
inasmuch as even these rights can be effective only from the moment
when they have been proclaimed: ‘We are in the presence of a right
whose nature remains indeterminable’ (ibid., p. 192).

‘Les tâches de la philosophie politique’, in La Revue du MAUSS,

first quarter 2002, p. 292.

D. D. Raphael, Problems of Political Philosophy (London:

Macmillan, 1970).

Jean-François Kervégan, ‘Démocratie et droits de l’homme’, in

Gérard Duprat (ed.), L’ignorance du peuple: Essai sur la démocratie

(Paris: PUF, 1998), p. 48.

Ibid.

‘Lofty ideals’, as Maurice Cranston writes, in Human Rights Today

(London: Ampersand, 1962).

Friedrich Hayek (1899-1992) was an economist who was crucial to

the development of the Austrian school of economics. He opposed
collectivism and state control of the economy in favour of classical
liberalism, holding that only the free market and limited government
were the only effective method of organising societies.-Ed.

The Road to Serfdom: Texts and Documents (New York: Routledge,

2007), p. 117.

Essais sur le politique (Paris: Seuil, 1986).

‘The more justice there is, the less freedom there is’, writes Max

Horkheimer.  ‘If  one  wishes  to  move  towards  equity,  one  should
prohibit  many  things  to  men...  But  the  more  freedom  there  is,  the
more one who deploys its powers with superior skill than others will
finally  be  capable  of  dominating  them,  and  thus  there  will  be  less
justice’ (Théorie critique [Paris: Payot, 1978], p. 358).

Art. cit., p. 42.

Le dépérissement de la politique: Généalogie d’un lieu commun

(Paris: Flammarion-Champs, 2002), p. 284.

Constitutional Theory, p. 207.

Op. cit., p. 284.

Philosophie des droits de l’homme (Brussels: Éditions de

l’Université de Bruxelles, 1987), p. 15.

Art. cit., p. 43.

Cf. Robert Bork, ‘The Limits of “International Law”’, in The

National  Interest,  Winter  1989-1990,  p.  10.  (‘There  can  be  no
authentic  rule  of  law  among  nations  until  nations  have  a  common
political  morality  or  are  under  a  common  sovereignty.  A  glance  at
the real world suggests we have a while to wait.’-Ed.)

The Trilateral Commission is a think tank founded by David

Rockefeller  to  facilitate  economic  cooperation  between  the  United
States, western Europe and Japan, although the list of nations which
participate  in  it  has  grown  since  then.  In  1975,  the  Commission
issued  a  report  entitled  The  Crisis  of  Democracy,  which
controversially  criticised  the  1960s  as  a  period  of  an  ‘excess  of
democracy’.-Ed.

Samuel Huntington (1927-2008) was an American political

scientist  who  became  infamous  for  serving  as  an  advisor  to
authoritarian  regimes,  such  as  South  Africa  in  the  1980s.  He
famously  postulated  that  nations  in  the  process  of  transitioning  into
modernity  must  be  cautious  about  not  introducing  democracy  too
quickly into their societies, and that repressive measures can actually
be  necessary  and  beneficial  in  the  short  term.  More  recently,  he
became well-known for his book The Clash of Civilizations, in which
he theorized that the changing world order following the collapse of
Communism  would  be  defined  by  conflicts  between  cultural  blocs,
such as the West and the Islamic world.-Ed.

Zbigniew Brzeziński (b. 1928) was the National Security Advisor

to the Carter administration from 1977 to 1981. Since then he has
gained a reputation as a highly respected political analyst. In the past
he has advocated an active role by economically advanced nations to
counter instability brought about by economic inequalities in the
Third World.-Ed.

Le droit des peuples (Paris: PUF, 1986), p. 52.

On the compatibility of the doctrinal foundations of liberalism and

democracy,  cf.  Carl  Schmitt,  Constitutional  Theory,  op.  cit.
‘Democracy  and  liberalism  are  incompatible’,  writes  Paul  Piccone;
‘liberal values are legitimate only if they are not imposed from above
by  a  central  government  pretending  to  know  better’  (‘Ten  Counter-
Theses  on  the  New  Class  Ideology:  Yet  Another  Reply  to  Rick
Johnstone’, in Telos 119, Spring 2001, p. 153).

‘Républicanisme et droits de l’homme’, in Le Débat, November-

December 1997, p. 65.

‘Les droits de l’homme ne sont pas une politique’, in Le Débat,

Paris, July/August 1980. The text was republished in La démocratie
contre elle-même, pp. 1-26.

Ibid., pp. 17-18.

Ibid., p. 26.

‘Quand les droits de l’homme deviennent une politique’, in Le

Débat, May/August 2000. The text was republished in La démocratie
contre elle-même, pp. 326-385.

Ibid., p. 335.

Ibid., p. 378.

Ibid., p. 381.

‘Les tâches de la philosophie politique’, art. cit.